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Full text of "North Carolina Register v.13 no. 18 (3/15/1999)"



NORTH CAROLINA 






REGISTER 



'^^ 



RECEIVED 

MAR^^ 1999 

-KATHRINE R eVtRETT 



LAW LIBRARY 

-F TT" 



VOLUME 13 • ISSUE 18 • Pages 1501 - 1599^ \\ 



March 15, 1999 



PUBLISHED BY '"• 

The Office of Administrative Hearings 
Rules Division 
PO Drawer 27447 
Raleigh, NC 2 7611- 744 7 
Telephone (919) 733-2678 
Fax (919) 733-3462 



H 



IN THIS ISSUE 

Voting Ri^ts Letter 

Agriculture 

Environment and Natural Resources 

General Contractors, Licensing Board for 

Health and Human Services 

Public Education 

Secretary of State" 

State Personnel 

Rules Review Commission 

Contested Case Decisionsxi 




This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 



For those persons that have questions or concerns regarding the Administrative Procedure Act or any ( 
components, consuh with the agencies below. The bolded headings are typical issues which the 
agency can address, but are not inclusive. 

Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc. 

Office of Administrative Hearings 
Rules Division 

Capehart-Crocker House ^ p "' 
424 North Blount Street ^"^ ^^. 
Raleigh, North Carolina 2760 1 -2817^ 



(919)733-2678 
(919) 733-3462 FAX 



contact; Molly Masich, Director APA Services 
Ruby Creech, Publications Coordinator 



Fiscal Notes & Economic Analysis 

Office of State Budget and Managemait 

116 West Jones Street 

Raleigh, North Carolina 27603-8005 

contact: Warren Plonk, Economist III 



Rule Review and Legal Issues 

Rules Review Commission 
1307 Glenwood Ave., Suite 159 
Raleigh, North Carolina 27^)5 

\\oDi»f®t: Joe DeLuca Jr., Staff Director Counsel 
Bobby Bryan, Staff Attorney 



mmasich@oah.state.nc.iis' 
rcreech@oah.state.nc.us 



(919)733-7061 

(919) 733-0640 FAX 

wplonk@osbm.state,nc.us 



(919)733-2721 
(919) 733-9415 FAX 




Legislative Process Concerning Rule-making 

Joint Legislative Administrative Procedure Oversight Committee 
545 Legislative Office Building ,^^ .«i*-4 
300 North Salisbury Street 
Raleigh, North Carolina 2761 1 



*>«*^ 



contact: Mary Shuping, Staff Liaison 




(919)733-2571" 
(919) 715-5460 FAX 



marys@ms ncga.statejic.t& 



.,»«««^ 



County and Municipality Government Questions or Notification 

NC Association of County Commissioners 

2 1 5 North Dawson Street (9 1 9) 7 1 5-2893 

Raleigh, North Carolina 27603 

contact: Jim Blackburn or Rebecca Troutman 

NC League of Municipalities 

2 1 5 North Dawson Street (9 1 9) 7 1 5-4000 

Raleigh, North Carolina 27603 

contact: Paula Thomas 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 



NORTH CAROLINA 
REGISTER 



IN THIS ISSUE 




IN ADDITION 
Voting Rights Letter 



1501 



II. 



Volume 13, Issue 18 
Pages 1501 - 0000 



March 15, 1999 



This issue contains documents officially filed 
through February 22, 1999. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601 ) 

PO Drawer 27447 

Raleigh, NC 2761 1-7447 

(919)733-2678 

FAX (919) 733-3462 



Julian Mann III, Director 

Camille Winston, Deputy Director 

Molly Masich, Director of APA Services 

Ruby Creech, Publications Coordinator 

Jean Shirley, Editorial Assistant 

Linda Dupree, Editorial Assistant 

Jessica Flowers, Editorial Assistant 



RULE -MAKING PROCEEDINGS 
Environment and Natural Resources 

Environmental Management Commission 
Wildlife Resources Commission 



1502 
1502 



III. PROPOSED RULES 
Agriculture 

Board of Agriculture, NC State Fair 

Licensing Boards 

General Contractors, Licensing Board for , 
Public Education 

Elementary and Secondary Education . . . , 



1503 

1524- 1525 
1503- 1524 



IV. TEMPORARY RULES 

Environment and Natural Resources 

Departmental Rules 1 528 - 1 545 

Environmental Management Commission . . . 1545 - 1553 
Marine Fisheries Commission 1553 - 1555 

Health and Human Services 

Health Services 1555 - 1556 

Medical Assistance 1526 - 1528 

Secretary of State 
Electronic Commerce Section 1556 - 1560 

State Personnel 
State Personnel Commission 1560 - 1563 

V. RULES REVIEW COMMISSION 1564-1566 

VI. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 1 567 - 1 577 

Text of Selected Decisions 

98 ELS 0099 1578 - 1591 

98OSP0170 1592-1599 

VII. CUMULATIVE INDEX 1-82 



North Carolina Register is published semi-monthly for $195 per year by the Office of Admmistrative Heanngs. 424 North Blount Street. Raleigh. NC 
27601. (ISSN 15200604) to mail at Penodicals Rates is paid at Raleigh. NC POSTMASTER. Send Address changes to the Sorth Carolina Register. 
PO Drawer 27447. Raleiah. NC 2761 1-7447 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



The North Carolina Administrative Code CNCAC) has four major subdivisions of rules. Two of these, titles and chapters, 
are mandatory. The major subdivision of the NCAC is the title. Each major department in the North Carolina executive 
branch of government has been assigned a title number. Titles are further broken down into chapters which shall be 
numerical in order. The other two. subchapters and sections are optional subdivisions to be used by agencies when 
annroDriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 



TITLE 



DEPARTMENT 



LICENSING BOARDS 



CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Athletic Trainer Examiners 


3 


4 


Commerce 


Auctioneers 


4 


5 


Correction 


Barber Examiners 


6 


6 


Council of State 


Certified Public Accountant Examiners 


8 


7 


Cultural Resources 


Chiropractic Examiners 


10 


8 


Elections 


Employee Assistance Professionals 


11 


9 


Governor 


General Contractors 


12 


10 


Health and Human Services 


Cosmetic Art Examiners 


14 


11 


Insurance 


Dental Examiners 


16 


12 


Justice 


Dietetics/Nutrition 


17 


13 


Labor 


Electrical Contractors 


18 


14A 


Crime Control & Public Safety' 


Electrolysis 


19 


15A 


Environment and Natural Resources 


Foresters 


20 


16 


Public Education 


Geologists 


21 


17 


Revenue 


Hearing Aid Dealers and Fitters 


22 


18 


Secretarv' of State 


Landscape Architects 


26 


19A 


Transportation 


Landscape Contractors 


28 


20 


Treasurer 


Marital and Family Therapy 


31 


*21 


Occupational Licensing Boards 


Medical Examiners 


32 


22 


Administrative Procedures (Repealed) 


Midwifery Joint Committee 


33 


23 


Communitv Colleges 


Mortuary Science 


34 


24 


Independent Agencies 


Nursing 


36 


25 


State Personnel 


Nursing Home Administrators 


37 


26 


Administrative Hearings 


Occupational Therapists 


38 


27 


NC State Bar 


Opticians 


40 






Optometry 


42 






Osteopathic Examination & Reg. (Repealed) 


44 






Pastoral Counselors, Fee-Based Practicing 


45 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing. Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Psychology Board 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & Audiologists 


64 






Substance Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






Veterinan.' Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



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INADDITION 


















This Section contains public 
of Rules for publication. 


notices that 


are required to be published in 


the 


Register 


or 


ha\'e 


been 


appr 


oved by the Codifier 



U.S. Department of Justice 
Civil Rights Division 



EJ:VLO:AS:emr Voting Section 

DJ 1 66-0 1 2-3 PO Box 66128 

98-3520 Washington. D.C. 20035-6128 

98-3930 



February 3, 1999 



David A. Hoiec. Esq. 

City Attorney 

P.O. Box 7207 

Greenville, North Carolina 27835 - 7207 

Dear Mr Holec: 

This refers to thirteen annexations (Ordinance Nos. 98-91 through 98-99, 98-109, and 98-124 through 126) and the 
designation of the annexed areas to districts for the City of Greenville in Pitt County. North Carolina, submitted to the Attorney 
General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your submissions on October 20 and 
December 10, 1998. 

The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly 
provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes. 
See the Procedures for the Administration of Section 5 (28 C.F.R. 5 1 .4 1 ). 



Sincerely, 



Elizabeth Johnson 
Chief, Voting Section 



13:18 NORTH CAROLINA REGISTER March 15, 1999 1501 



RULE-MAKING PROCEEDINGS 



A Notice of Rule-making Proceedings is a statement of subject matter of the agency's proposed rule making. The agency 
must publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a 
rule. Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can be found in the Register under 
the section heading of Temporary Rules. A Rule-making Agenda published by an agency serves as Rule-making Proceedings 
andean be found in the Register under the section heading of Rule-making Agendas. Statutory reference: G.S. 150B-21.2. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 



accordance with G.S. 150B-21.2. The agency shall subsequently 
publish in the Register the text of the rule(s) it proposes to adopt 
as a result of this notice of rule-making proceedings and any 
comments received on this notice. 



SUBCHAPTER 2S - ENVIRONMENTAL 
MANAGEMENT COMMISSION 

TV Totice of Rule-making Proceedings is hereby given by the 
1 V Department Evironment and Natural Resources in 
accordance with G.S. 150B-21.2. The agency sluill subsequently 
publish in the Register the text of the rule(s) it proposes to adopt 
as a result of this notice of rule-making proceedings and any 
comments received on this notice. 



Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC I OB .0115. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S 113-134: 113-291.1: SL. 
1981. Ch. 410: SL. 1981 (Second Session 1982). Ch. 1180 



Statement of the Subject Matter: 

Shining Lights in Deer Areas. 



To amend the rule for 



Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC 2S Other rules may be proposed in the course of the 
rule-making process. 

Authority for the rule-making: G.S. 143-215. 104A et seq. 

Statement of the Subject Matter: The Environmental 
Management Commission will consider adoption of rules 
necessary to implement the Dry-cleaning Solvent Cleanup Act 
of 1997. G.S 143-21 5. 104A etseq. 

Reason for Proposed Action: The North Carolina General 
Assembly enacted G.S. 143-215. 104A etseq., referred to as "The 
Dry-cleaning Solvent Cleanup Act of 1997". This law 
authorizes the Environmental Management Commission to 
engage in rule making as required to implement the dry- 
cleaning solvent cleanup program. The Division of Waste 
Management, Superfund Section, is filing notice of its intent to 
develop rules in order to initiate assessment and cleanup actions 
at eligible sites in accordance with the statute. 



Reason for Proposed Action: To set/amend regulations for 
shining lights in deer areas necessary to manage and conserve 
the resource as requested by the Avery County Board of 
Commissioners. The Wildlife Resources Commission has the 
authority' to adopt this rule as a temporary rule pursuant to G.S. 
1 5B-2 1 . 1 lal ) following this abbreviated notice. 

Comment Procedures: The record will be open for receipt of 
written comments and must be delivered or mailed to the North 
Carolina Wildlife Resources Commission. 512 N. Salisbury St., 
Raleigh. North Carolina 27604-1188. 



Comment Procedures: Written comments may be submitted to 
the Division of Waste Management, Superfund Section, 
Attention: Lisa Taber, 401 Oberlin Road. Suite 105. Raleigh. NC 
27605. 

******************** 

CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETY 



M 



SUBCHAPTER lOB - HUNTING AND 
TRAPPING 

^otice of Rule-making Proceedings is hereby given by the 
North Carolina Wildlife Resources Commission in 



1502 



NORTH CAROLINA REGISTER 



March IS, 1999 



13:18 



PROPOSED RULES 



This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published a Notice 
of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the publication 
date, or until the public hearing, or a later date if specified in the notice by the agency. The required comment period is 60 days 
for a rule that has a substantial economic impact of at least five million dollars ($5, 000. 000). Statutory reference: G.S. 150B- 
21.2. 



TITLE 2 - DEPARTMENT OF AGRICULTURE 

Notice is hereby given in accordance with G.S. 1 50B-21.2 
tliat the NC Board of .Agriculture intends to amend the rule 
cited as 2 NCAC 20B .0104. Notice of Rule-making 
Proceedings was published in the Register on Januaiy 4. 1 999. 

Proposed Effective Date: July 1. 2000 

Instructions on How to Demand a Public Hearing (must be 
requested in writing within 15 days of notice): Any person may 
request a pubic hearing on the proposed rule by submitting a 
request in writing no later than March 31, 1999. to David S. 
McLeod. Secretary. North Carolina Board of .Agriculture. P. O. 
Box 27647. Raleigh. NC 27611. 

Reason for Proposed Action: To provide additional revenues 
for increased operating expenses of State Fair 

Comment Procedures: Written comments may be submitted 
no later than March 31. 1999, to David S. McLeod. Secretaiy, 
North Carolina Board of Agriculture, P.O. Box 27647, Raleigh, 
NC 27611. 



(d) Outside gale admission prices are as follows: 

(1) adult/child, 13 years of age and over $6.00 

(2) child, 6 through 12 years of age UrOQ $2.00 

(3) senior citizen, 65 and over Free 

(4) child, under 6 years of age Free 

(e) Outside gate admission prices for advance ticket sales are 
as follows: 

(1) adult/child. 13 years of age and over $5.00 

child, 6 through 12 years of age $1.00 

senior citizen. 65 and over Free 

child, under 6 years of age Free 

adult group sales purchasing a minimum of 
40 tickets $4.75 

(f) The State Fair Manager may offer to exhibitors and 
concessionaires a reduced rate for gate admission. If offered, 
such discount tickets may be purchased from the administration 
office. Each discount ticket shall allow one admission during 
each day of the fair. These cards shall be non-refundable, 
whether used or not. and shall be used only by persons involved 
with concessions or exhibits, and not for general admission. 

Authorities 106-503. 



(2) 
(3) 
(4) 
(5) 



Fiscal Note: This Rule does not affect the expenditures or 
revenues of state or local government funds. This Rule does not 
have a substantial economic impact of at least five million 
dollars (S 5. 000.000) in a 12-month period 

CHAPTER 20 - THE NORTH CAROLINA STATE FAIR 

SUBCHAPTER 20B - REGULATIONS OF THE STATE 

FAIR 

.0104 ADMISSION REGULATIONS 

(a) All persons entering the North Carolina State Fair grounds 
must pay the established admission fee. except persons holding 
worker's permits. One-time-only admissions will be issued to 
those persons who are employed by the fair or are asked to 
appear on the grounds by the fair management for a specific 
purpose, relative to the operation of the fair. 

(b) The gates of the North Carolina State Fair will be open to 
visitors from 9:00 a.m. until midnight each day of the fair. 
Exhibit buildings will be open from 9:00 a.m. to 9:45 p.m. daily. 

(c) The State Fair Manager may operate a pass-out system at 
one or more of the outside gates. Persons exiting through these 
gates may, upon request, have their hand or vehicle stamped for 
readmittance through the same gate without additional charge. 
Readmittance must occur before 10:00 p.m. on the same day as 
pass-out or the hand stamp will not be honored. 



TITLE 16 - DEPARTMENT OF PUBLIC 
EDUCATION 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the State Board of Education intends to adopt the 
rules cited as 16 NCAC 6B .0108: 6G .0311. .0502: amend the 
rules cited as 16 NC.4C 6C .0102-.0103. .0202. .0205-.0207, 
.0301-.0309. .0311:03 13. .0501: 6D .0103. .0210. .0301-.0303. 
.0305: 6E .0202. .0301: 6G .0308-.0309; 6H .0101, .0103, 
.0I05-.0110: and repeal the rule cited as 16 NCAC 6G .0202. 
Notice of Rule-making Proceedings for 16 NC.4C 6D .0103: 6G 
.0311 was published in the Register on May 15. 1998. Notice of 
Rule-making Proceedings for 16 NCAC 6E .0301 was published 
in the Register on September 1. 1998. Notice of Rule-making 
Proceedings for 16 NC.4C 6B .0108 was published in the 
Register on January 4. 1999. Notice of Rule-making 
Proceedings was not published in the Register under G.S. 115C- 
17 for 16 NCAC 6C .0102-.0103. .0202, .0205-.0207, .0301- 
.0309. .0311-0313. .0501: 6D .0210. .0301-.0303. .0305. 6E 
.0202: 6G .0202. .0308-.0309. .0502: 6H .0101, .0103. .0105- 
.0110. 

Proposed Effective Date: July 1. 1999 

A Public Hearing will be conducted on April 2. 1999 at the 
Education Building, 7'' Floor Board Room at: 



13:18 



NORTH CAROLINA REGISTER 



March 15, 1999 



1503 



PROPOSED RULES 



9:00 a.m. for 16 NCAC 6D.0W3: 6G .0311 

10:00 a.m. for 16 NCAC 6E.0301 

11:00 a.m. for 16 NCAC 6B.0108 

1:00 p.m. for 16 NCAC 6C .0102-.0103. .0202. .0205-.0207, 

.0301:0309. .0311:0313. .0501: 6D.02W. .0301:0303, .0305: 

6G.0202, .0308:0309, .0502: 6H.0101. .0103, .0105:0110 

Reason for Proposed Action: 

16 NCAC 6B .0108 - The General Assembly directed the Slate 

Board of Education to adopt rules to exempt supplies, 

equipment, and materials related to student transportation from 

the la\i' allowing purchasing flexihilit}', G.S. 11 5C-522.1. 

16 NCAC 6D .0103 - Regarding computer skills, many schools, 

parents and students expected the provision to be in effect 

currently and they requested that the requirement not be 

delayed. Regarding earth/environmental science, many school 

systems have indicated that they need an additional year to 

prepare staff and to develop curriculum before this requirement 

is effective. 

16 NCAC 6E .0301 - The General Assembly directed the State 

Board of Education to work with two other agencies to develop 

coordinated rules for the implementation of the driving 

eligibility program established by SL 1997-507. These rules 

were first adopted as temporary rules. 

16 NCAC 6G .0311 - G.S 115C-105.38A requires the State 

Board of Education to require certain certified staff members in 

low-performing schools to pass a general knowledge test. This 

rule implements that requirement. 

16 NCAC 6C .0102:0103, .0202, .0205-.0207, .0301-.0309, 

.0311:0313, .0501; 6D .0210, .0301:0303, .0305; 6E .0202; 

6G .0202, .0308:0309, .0502; 6H .0101, .0103, .0105:0110 - 

Agency proposes to change the term "certificate" to "license" in 

Subchapter 6C and to make other clariffing changes throughout 

Title 16. 

Comment Procedures: Comments may be presented orally at 
the hearings or in writing or e-mail submitted to the Rule- 
making Coordinator Harry E. Wilson. 301 N. Wilmington St., 
Raleigh, NC 27601-2825. hwilsomci dpi. state. nc. us by April 15, 
1999. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do not 
have a substantial economic impact of at least five million 
dollars (S 5, 000, 000) in a 12-month period. 

CHAPTER 6 - ELEMENTARY AND SECONDARY 
EDUCATION 

SUBCHAPTER 6B - STUDENT TRANSPORTATION 
SYSTEM 

.0108 PURCHASING FLEXIBILITY EXEMPTION 

All supplies, equipment, and materials related to student 
transportation shall be exempted from the purchasing flexibility 
granted to LEAs under G.S. 1 1 5C-522. 1 . 

Authority G.S 115C-522.1(e). 



SUBCHAPTER 6C - PERSONNEL 
SECTION .0100 - GENERAL PROVISIONS 

.0102 NATURE OF LICENSURE 

(a) The SBE e x e rcis e s shall exercise its c e rtification licensing 
authority through the Department in two general areas: 

(1) The SBE considers shall consider for approval the 
teacher education programs of IHEs which that 
belong to the SACS and which that meet the 
requirements of Rules .0202-.0206 of this Subchapter. 

(2) The SBE award s c e rtification shall award licenses to 
individuals who desire to obtain employment as a 
professional public school employee and who meet 
the requirements of Section .0300 of this Subchapter. 

(b) The SBE bas e s shall base its approval on the requirements 
which that are in effect at the time the IHE or the individual 
applies for approval. 

Authority N.C. Constitution, Article LX, Sec. 5. 

.0103 STATE BOARD OF EDUCATION ACTION 

(a) The SBE awards or denies shall award or deny approval 
to teacher education programs by the process described in 1 6 
NCAC 6C .0202. 

(b) The SBE acts shall act on personnel c e rtification license 
requests according to the process contained in 16 NCAC 6C 
.0301. 

.Authority G.S. 115C-284(c): 115C-296: 115C-3 15(d). 

SECTION .0200 - TEACHER EDUCATION 

.0202 APPLICATION FOR APPROVAL; CRITERIA 

(a) Each IHE which that seeks approval for any teacher 
education program must file with the Department a preliminary 
application in the form prescribed by the SBE. 

(b) The IHE will engage in self-study in accordance with the 
existing NCATE/state protocol agreement. 

(c) When the IHE has completed all preparation phases of the 
self-study, the Department shall send a visitation committee to 
verify' the reports for all specialty areas for which approval is 
sought. 

(d) The SBE shall notify IHEs which that are denied approval 
of the reasons for denial. The IHE may reapply after it has 
corrected the conditions which that led to the denial of approval. 

(e) Each approved IHE shall continually review its programs. 
The SBE will annually monitor student performance based upon 
required examinations and progression toward continuing 
c e rtification, licensure . The IHE may request or the SBE may 
conduct a re-evaluation at any time. 

(0 During the final year of the current approval period, the 
IHE shall arrange for a re-approval committee visit. 

(g) Approved IHEs shall make annual reports of such 
information as the SBE requests. 

(h) The SBE must approve any revisions to approved 
programs. 

(i) The SBE must approve each teacher education program 



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13:18 



PROPOSED RULES 



before an IHE may recommend its graduates for c e rtification. 
licensure. In making recommendations to the SBE and in 
determining the approval status of an IHE teacher education 
program and its specialty area program, such as mathematics or 
science, the state evaluation committee and the SBE, 
respectively, will weigh the following criteria: 

(1 ) SACS accreditation of the IHE; 

(2) either: 

(A) full accreditation or accreditation with 
stipulations of the professional education unit 
by the national council for accreditation of 
teacher education (NCATE) at the basic and 
advanced levels, as appropriate: or 

(B) approval of the professional education imit by 
the state program approval process as follows: 

(i) the standards for unit approval must be 
equal to or higher than those applied by 
NCATE; and 

(ii) the state review team must include out- 
of-state evaluators. 

(3) approval of all IHE specialt>' area programs by the 
state program approval process in accordance with 
established SBE rules at the undergraduate and 
graduate levels, as appropriate; 

(4) evidence that the IHE requires a 2.50 grade point 
average on a 4.00 scale for formal admission into 
teacher education; 

(5) evidence that during the two preceding consecutive 
years, 70 percent of the graduates of the IHE have 
passed the NTE on professional knowledge and on 
appropriate specialty area tests as established by Rule 
.0310 of this Subchapter; 

(6) evidence that during the two preceding consecutive 
years, 95 percent of the graduates of the IHE 
employed by public schools in the State have earned 
a continuing c e rtificat e license as provided by Rule 
.0304 of this Subchapter; and 

(7) evidence that faculty members assigned by the IHE to 
teach undergraduate or graduate methods courses or 
to supervise field experiences for prospective teachers 
hold valid North Carolina teachers' c e rtificat es 
licenses in the area(s) of their assigned 
responsibilities. 

Authority G.S. 115C-12(9)a.: U5C-296(b): N.C. Constitution, 
Article IX. Sec. 5. 

.0205 STATE BOARD REVIEW STANDARDS AND 
APPROVAL ACTIONS 

(a) Each IHE seeking approval must present documentation 
for each specialty area that: 

( 1 ) the state-approved professional studies guidelines for 
all c e rtificat e d licensed school personnel are 
adequately addressed; 

(2) the state-approved professional studies competencies 
common to all c e rtificat e d licensed school personnel 
are adequately addressed; 

(3) candidates for admission to c e rtification licensure 



preparation programs meet minimum score 
requirements adopted by the SBE on Cor e Batt e ries 1 
(Commun i cation Skills) and II (General Knowl e dg e ) 
the Preprofessional Skills Test (PPST) (Reading, 
Writing, and Mathematics) of the NTE before formal 
admission can occur. Undergraduate degree-seeking 
students do not complete more than one-half of the 
professional studies sequence (excluding student- 
teaching/intemship) before being formally admitted 
into the c e rtification license preparation program; 

(4) sequentially planned field experiences for 
undergraduate degree-seeking students begin early in 
the student's program and culminate in a continuous 
and extended minimum ten-week period of student 
teaching in the area in which the student seeks 
c e rtification, a license. All field experiences are 
supervised and formal evaluations involving faculty, 
cooperating teachers and students occur as 
appropriate; 

(5) preparation for entry c e rtification licensure at the 
advanced level includes supervised internship or field 
experiences appropriate to the role(s) for which 
students are being prepared. These experiences are the 
basis for applying theory to practice, developing 
competencies at a high proficiency level, and 
evaluating the candidate's performance; 

(6) the goals and objectives of the specialty studies are 
clearly stated in writing, are readily accessible to 
faculty, students and other consumers and reflect a 
clear conception of the role(s) in the public schools 
for which students are being prepared; 

(7) an appropriate balance among general studies, 
specialty studies and professional studies exists at the 
undergraduate level to assure a well-rounded 
education for students; 

(8) the program of specialty studies complies with state- 
approved guidelines for the c e rtification license area 
in which the student is being prepared; 

(9) the specialty studies complies with state-approved 
competencies for the c e rtification license area in 
which the student is being prepared; 

(10) master's, sixth-year (e.g., CAS, Ed.S.) and doctoral 
curricula are clearly delineated and differentiated 
from one another and from the undergraduate 
curriculum; 

(11) requirements for c e rtificat i on only license-only 
students are clearly described and comparable to those 
for degree-seeking students; 

(12) each faculty member teaching in the specialty area 
demonstrates competence in the area(s) of assignment; 

(13) one appropriately specialized faculty member full- 
time to the institution is assigned major responsibility 
for teaching in and coordinating each specialty area 
offered. To ensure diversity, there must be a sufficient 
number of additional faculty, appropriately 
specialized, to deliver the level(s) offered; e.g., 
undergraduate, master's, specialist. Each advanced 
degree program that leads to the doctorate has at least 



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March IS, 1999 



1505 



PROPOSED RULES 



three full-time faculty' who have earned the doctorate 
in the field of specialization for which the degree is 
offered; 

(14) among the credentials of the faculty' delivering (e.g., 
teaching, directing, coordinating) the specialty area, 
there is evidence of recent, substantive involvement 
with public school students, staff members or 
programs; 

(15) among the credentials of adjunct/part-time faculty 
delivering the specialty area there is evidence of 
recent, substantive involvement with the institution 
via students, other faculty or program development; 

( 1 6) specialized books and periodicals, current curriculum 
guides, textbooks and courses of study adopted by 
local school systems and the SBE, instructional 
media, equipment and other forms of technology, 
testing materials and supplies for the production of 
teacher-made materials and library resources for the 
specialty studies are available and adequate in number 
to serve the student population; 

(17) instructional resources for the specialty area are 
organized for accessibility and there is evidence of 
use by both students and faculty; 

( 1 8) appropriate and sufficiently-equipped classroom space 
is provided to meet the needs of each specialty area; 

(19) adequate facilities, including sufficient office space, 
are provided to serve the needs of staff and faculty, to 
counsel students, and to work effectively with local 
school personnel; and 

(20) an annual review of the specialty area is conducted 
and the resulting data are applied, as appropriate, for 
program improvement. 

(b) All IHEs with existing teacher education programs must 
have an NCATE/State review completed by December 31,1 992. 
Students who have been formally admitted before June 30, 1993 
into a program that leads to c e rtification licensure may complete 
that program and be eligible to be recommended for c e rtification 
licensure on the condition that they complete such programs no 
later than June 30, 1995. After December 31, 1992. IHEs 
seeking initial approval for teacher education must be reviewed 
by NCATE/State to be eligible for SBE approval. 

(c) The SBE shall receive and consider recommendations for 
approval action on an IHE from its state evaluation committee on 
teacher education. The SBE shall accept any comments or 
additional information submitted by the IHE before making its 
decision under this Rule. TTie SBE shall render separate approval 
decisions at all levels appropriate to an IHE and its specialty area 
programs as follows: 

( 1 ) Full approval. This status indicat es shall indicate that 
the IHE teacher education and specialty area programs 
at all levels are judged to be fully qualified to produce 
effective teachers for the public schools. The SBE 
grant s shall grant approval for a five-year period. The 
SBE or the IHE may call for an interim on-site review 
at any time during the five year period if conditions 
warrant that action. 

(2) Full approval with stipulation(s). This status specifics 
shall specify minor exceptions that the IHE must 



address within one year. The exceptions will be 
limited to those that can be easily corrected and 
verified in a written report or by a small on-site State 
visitation team. The SBE will grant full approval if 
the IHE corrects the exceptions within the specified 
time. If the IHE does not correct the exceptions within 
the specified time, the SBE will place the IHE on 
provisional status. Approval for a five-year period 
b e gins shall begin with the date of the initial action by 
the SBE. 

(3) Provisional approval. This status sp e cifi e s shall 
specify' critical deficiencies that the IHE must address 
within three years. The SBE may provisionally 
approve all programs at the IHE or individual 
specialty area programs or levels. The IHE must: 

(A) submit to the SBE an annual written report of 
its actions taken to correct the deficiencies; 

(B) be visited annually by a consultant fi"om the 
division of teach e r e ducation s e rvic e s of th e 
Dcpartme frtr Human Resource Management 
Division, Teacher Education Section, who 
monitors shall monitor the IHE's progress; and 

(C) be reevaluated for compliance by an on-site 
State visitation team. 

The SBE will grant full approval or full approval with 
stipulations if the IHE corrects the deficiencies within 
the specified time. If the IHE does not correct the 
deficiencies within the specified time, the SBE will 
deny approval. Approval for a five-year period b e gins 
shall begin with the date of the initial action by the 
SBE. 

(4) Denial of approval. This status occurs shall occur 
when an IHE or one or more of its specialty areas or 
levels are judged to be unqualified to produce 
effective teachers for the public schools. After the 
IHE receives notice of the denial, no students 
completing the program will be eligible for 
c e rtification licensure except those who were formally 
admitted to the program before the IHE received 
notice of the denial. An IHE must wait one year 
before beginning the process of seeking approval. 

Authorities. 115C-12(9)a.: 115C-296(b). N.C. Constitution. 
Article L\'. Sec. 5. 

.0206 CONSORTIUM-BASED PROGRAMS AND 
INNOVATIVE/EXPERIMENTAL PROGRAMS 

(a) A consortium-based teacher education program is shall be 
an alternative to the regular approved program which that 
involves IHEs, public schools, professional groups and the 
Department in the planning and implementation of programs. 

(b) The consortium shall receive approval by the SBE before 
it implements an alternative program. The application process 
described in Rule .0202 of this Section appli e s shall apply to 
alternative programs. The Department shall issue a c e rtificat e 
license to all graduates of these approved programs who are 
recommended by the consortium and who otherwise meet 
certification licensure requirements. 



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PROPOSED RULES 



(c) When the Department receives a proposal to establish an 
alternative program, it shall review the proposal, including 
making on-site visits with agencies as required. The State 
Evaluation Committee on Teacher Education shall consider staff 
recommendations and make its own recommendations to the 
SBE for approval. 

(d) The SBE shall approve programs which that meet the 
following standards: 

( 1 ) The program is shall be planned, developed, 
implemented and evaluated by a consortium of 
agencies, including IHEs, local school administrative 
units, professional groups and the SBE. 

(2) The — program — ts — appropriat e ly — organiz e d — and 
administ e r e d. Consortium-based programs are shall be 
developed and implemented according to an 
established managerial structure which that describes 
activities and relationships. 

(3 ) The program has shall have suffici e nt and appropriat e 
supportiv e human and physical r e sourc e s, resources to 
support the program. 

(4) The consortium d e v e lops shall develop entry 
requirements and levels of competency expected. 

(5) The program addr e s ses shall address the needs of the 
students. 

(6) The program includ e s shall include exit levels of 
competence, a procedure for recommending 
c e rtification, licensure, and a follow-up process. 

(e) The SBE may grant approval to an IHE to develop a new 
innovative or experimental teacher education program. TTie SBE 
shall consider for approval such a program based on 
documentation that the proposed innovation is sound and has the 
potential for strengthening the preparation process for 
professional personnel. The SBE will evaluate the program 
annually based on a written report submitted to it by the IHE or 
by an on-site State visitation team to assure that the IHE is 
producing prospective teachers who can function effectively in 
the public schools of the State. 

Authority G.S. 115C-12(9)a; N.C. Constitution, Article IX, Sec. 

5. 

.0207 PROSPECTIVE TEACHER SCHOLARSHIP 
LOANS 

(a) Recipients of prospective teacher scholarship loans who 
attend a college or university will receive up to two thousand 
dollar s ($2,000) two thousand five hundred dollars ($2,500) per 
year to pay for courses, fees and books. Recipients of 
prospective teacher scholarship loans who attend a 
technical/community college will receive nine hundred dollars 
($900) per year to pay for courses, fees and books. 

(b) Scholarship loans are shall be available only to legal 
residents of North Carolina. To be considered a legal resident, 
a person must have lived in the state for at least 12 months 
before applying for the loan. 

(c) Persons who are in default on another student loan will 
not be eligible for a scholarship loan under this Rule. 

(d) Scholarship loan recipients must enroll in and attend a 
public or private college or university in this state with an 



approved teacher education program, or a technical/community 
college in this state with a program of study that leads to teacher 
licensure. 

(e) A recipient's scholarship loan may be continued during 
periods of study abroad only if the recipient remains enrolled in 
a North Carolina college or university and receives credit toward 
completion of requirements for the work completed while 
abroad. 

(f) Scholarship loans may not be used to obtain credits 
through correspondence courses or extension courses even if the 
recipient uses less than the maximum amount as an 
undergraduate. 

(g) The Department may cancel a loan if the recipient: 

(1) willfully reports requested information that is 
erroneous or incomplete; 

(2) fails to complete and return requested forms by the 
required dates; 

(3) fails to pursue a full-time program in teacher 
education or withdraws permanently from college; 

(4) is not admitted to the college's teacher education 
program; 

(5) is convicted of a felony or other crime involving 
moral turpitude, possession or use of controlled 
substances, or other grounds for which a teaching 
certificate may be revoked under 1 6 NC AC 6C .03 1 2; 

(6) does not maintain a 2.5 cumulative average for the 
freshman year and a 3.0 cumulative average for each 
of the following years, based upon a 4.0 grading 
scale; or 

(7) fails to keep the Department informed of any address 
change or change in status as a prospective teacher. 

(h) Upon cancellation or default, the entire principal balance, 
together with accrued interest, b e com e s shall become 
immediately due and payable. 

(i) Once a recipient receives a license based upon the entry- 
level degree, the amount of the loan and accrued interest must be 
repaid by either employment as a regular full-time teacher or by 
making cash payments. Recipients who do not begin teaching in 
the school year following their qualifying for licensure must 
begin repayment upon their failure to begin teaching. Repayment 
shall be made in full or in equal monthly payments as determined 
by the Department, contingent upon the number of notes 
received. 

(j) For purposes of credit for teaching, "full school year" 
m e ans shall mean a minimum of six calendar months within one 
school yean Service as a tutor, a substitute teacher, a part-time 
teacher or a teacher in a non-public school dees shall not qualify 
as service credit for loan repayment. 

Authority' G.S. 115C-471. 

SECTION .0300 - CERTIFICATION 

.0301 GENERAL INFORMATION 

(a) Any person who desires to obtain employment from a 
LEA in a professional position shall apply for and obtain 
c e rtification a license from the Department. Each applicant shall 
file an application in the form prescribed by the Department. 



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1507 



PROPOSED RULES 



together with an official transcript(s), a recommendation by a 
designated official of the approved IHE where preparation was 
completed, and the c e rtification licensure fee in an amount 
which th e SBE d e t e rmin e s annually, specified m G.S. 1 15C- 
296(a2). 



(b) The Department e valuat e s shall evaluate each application 
and its supporting documentation and notifi e s shall notify each 
applicant of the action it takes. 

(c) An applicant who desires to upgrade, renew or add new 
fields to a c e rtificat e license shall supply documentation to the 
Department which that supports the desired action. 

(d) A class "A" teaching c e rtificat e license may be changed 
from early childhood, intermediate, middle grades or secondarv 
to either of the other categories upon the applicant's completion 
of the appropriate program for s uch certificate, the license. An 
applicant who secures credit for new subject or teaching fields 
may have these fields added to a teaching c e rtificat e , license. 

(e) All c e rtificat e s licenses issued by the Department are shall 
be effective July 1 of the year of issue or upon the date that the 
requirements are completed. C e rtificat e s are Licenses shall be 
valid for the remainder of the fiscal year in which the person 
establishes c e rtification licensure qualifications with the 
Department or up to a five year period following July 1 or the 
date the person completes c e rtification licensure requirements. 
Five-year dating cycles are shall be initially based on the 
completion of credit requirements to quality for c e rtification, 
licensure, the completion of c e rtificates license renewal, or a 
valid c e rtificat e license held from another state with which 
reciprocity has been established. New five-year dating cycles ffl=e 
shall be established enly when an expired certificat e license is 
r e n e w e d, renewed or upon the completion of initial licensure 
requirements. 

(f) Any c e rtificat e d licensed person may apply to the 
Department on forms which that it furni s h es shall furnish for a 
duplicate c e rtificate, license, in the event the original is lost, or 
for the change of the applicant's name. 

(g) Professional personnel may be assigned only to areas in 
which the individual holds c e rtification, a license, a provisional 
c e rtification, license, endorsement or provisional endorsement 
as required by the Department. The LEA may assign any 
c e rtifi e d licensed teacher who is the best qualified to teach 
remedial courses, regardless of c e rtification license area. This 
provision dees shall not apply to any vocational c e rtificat e 
license which that has been restricted by the Department as a 
part of completing c e rtification licensure requirements. 

Authohtv G.S. I15C-12(9)a: N.C. Constitution. Article IX. Sec. 
5. 

.0302 CREDIT 

(a) The Department comput e s shall compute all credit for 
c e rtification, licensure, including residence, extension and 
correspondence credit, in semester hours. The Department 
comput es shall compute credit for re c e rtification re-licensing or 
renewal purposes in quarter hours. A quarter hour has shall have 
the value of two-thirds of a semester hour. 

(b) The Department may accept extension and 
correspondence credit earned from an accredited IHE at the class 



"A" c e rtification license level and below, for purposes of 
renewal, adding a teaching subject and removing deficiencies. 
The Department will allow no more than six semester hours of 
correspondence credit per certificate action. For purposes of 
upgrading undergraduate c e rtificat e s, licenses, a maximum of 1 
of the 30 semester hours required for raising the c e rtificat e 
license to the next higher level may be extension and 
correspondence credit. The approved IHE shall accept all credits 
applying to graduate c e rtificat es licenses and c e rtificates licenses 
in the special services areas, including all c e rtificates licenses 
above the "A" level. 

(c) When a person earns credits in more than one IHE before 
obtaining a degree, the person shall transfer the credit to an 
approved IHE which that the person has attended or expects to 
attend. The person must be enrolled in an approved teacher 
education curriculum at the IHE. 

(d) A person may use credit used for renewal or reinstatement 
of a c e rtificat e license of lower rank toward upgrading a 
c e rtificate, license. 

(e) The Department will retain all credits submitted to it. The 
Department will not return transcripts nor furnish certified 
copies of credits to applicants. 

Authority G.S. 115C-12(9)a: N.C. Constitution. Article LX. Sec. 

5. 



.0303 



FOR 



PROGRAM REQUIREMENTS 

LICENSURE 

In order to receive the initial regular c e rtificat e , license, an 
applicant must obtain the bachelor's or other required degree. 
The applicant must also receive a recommendation from the IHE 
which that includes the approval or endorsements of beth the 
administrative head of the professional education unit, unit and 
th e d e partm e nts or ar e a s in which c e rtification i s s ought. The 
IHE must determine that the candidate has satisfied all minimum 
score requirements on standard examinations specified by the 
SBE before it makes a recommendation. 

Authority G.S. ll5C-I2(9)a: N.C. Constitution. Article IX. Sec. 

5. 

.0304 LICENSE PATTERNS 

(a) C e rtificat e s Licenses shall indicate grade levels, content 
ar e as, areas and specializations and pr e paration levels for which 
the professional has b ee n pr e par e d, shall be eligible for 
employment, as well as preparation and experience levels. 

(b) C e rtificat e s ar e Licenses shall be of the following types: 
( 1 ) Teacher. The certificate entitles license shall entitle 

the holder to teach in some designated area of 
sp e cialization, specialization at the elementary, 
middle, or secondary level . There are shall be four 
levels of preparation: 

(A) bachelor's d e gr ee ; degree (A level); 

(B) master's d e gr ee ; degree (G level); 

(C) s ixth y e ar; sixth-year (AG level); and 

(D) doctorat e ; doctora te (DG level). 

The teacher license shall further be categorized as 
prekindergarten B-K, elementary K-6, middle grades 



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13:18 



PROPOSED RULES 



6-9. secondary 9-12, special subjects K-12, and work 
force development. 

(2) Administrator/supervisor. The holder may serve in 
g e n e ral generalist and program administrator roles 
such as superintendent, assistant or associate 
superintendent, principal, assistant principal or 
curriculum-instructional specialist. There are shall be 
three levels of preparation: 

(A ) master's degree; 

(B) sixth-year; and 

(C) doctorate. 

(3) Student services area. The holder may provide 
specialized assistance to the learner, the teacher, the 
administrator and the education program in general. 
This category includ e s th e coun se lor and s chool 
psychologist, shall include school counseling, school 
social work, school psychology, audiologv, speech 
language pathology, and media. There are shall be 
three levels of preparation as in the case of the 
administrator/supervisor, except that the — school 
p s ychologist is school psychology shall be restricted 
to the sixth-year or doctorate levels, levels and school 
social work may be earned at the bachelor's level . 

(c) The Department ba ses shall base c e rtificat e license 
classification on the level and degree of career development and 
competence. There are shall be two classifications of c e rtificat e s: 
licenses: 

The initial c e rtificat e , license, which is shall be valid 



(1) 



(2) 



for two three years, allow s shall allow the holder to 
begin practicing the profession on an independent 
basis. Only tho se p e r s ons who ar e actually b e ginning 
in th e prof e ssion r e quir e initial c e rtification. P e r s on s 
who see k c e rtification in this stat e for th e fir s t tim e 
and who hav e two y e ars of appropriat e e xp e ri e nc e as 
d e t e rmin e d by th e d e partm e nt ar e e ligibl e for a 
continuing c e rtificat e . Th e hold e r mu s t s e rv e at l e ast 
on e p e riod a day for two y e ars in a t e aching 
assignm e nt appropriat e to th e hold e r's ar e a of initial 
c e rtification. If th e hold e r is not appropriat e ly plac e d 
in fi e ld for a two y e ar p e riod th e hold e r andor th e 
hold e r's e mploy e r must apply to the d e partment to 
e xt e nd th e initial c e rtificate. Th e d e partment may 
e xt e nd th e initial c e rtificate for up to two y e ars, 
provid e d that th e e xt e nsion occur s within five year s of 
th e dat e of qualification as determin e d by the dating 
and/or r e n e wal requirement s contained in Rules 
.030 i( e ) and .0307 of this Subchapt e r. The hold e r 
may hav e th e c e rtificat e chang e d to a continuing 
c e rtificat e as provid e d in subparagraph (d) of this 

Pulp 

The continuing c e rtificat e authoriz e s license shall 
authorize professional school service on a continuing 
basisr an ongoing basis, subject to renewal every five 
years. Thi s clas s ification includ e s thr ee cat e gories: 
{M t e ach e r (clas s "A" und e rgraduat e and class "G" 
graduate) in th e following ar e as: 
(4) e arly childhood e ducation, K '1; 
(ii) int e rm e diate education, 1 6; 






fiii) middl e grad e s e ducation, 6 9; 
(4v) se condary sp e cializations, 12; 
^ special ar e a s ; and 
fvi^ occupational, 
administrator; and 
e ducation sp e ciali s t. 



fd) To convert th e initial certificat e to a continuing c e rtificate, 
th e hold e r must s e rv e two y e ars with a LEA or a non public 
school that has a compr e h e nsiv e program plan for initially 
c e rtifi e d p e r s onn e l that m ee ts th e crit e ria contain e d in this 
s ubparagraph and that i s approv e d by th e SBE; meet the 
p e rformanc e crit e ria for conv e r s ion of an initial c e rtificat e to a 
continuing c e rtificat e ; and b e r e comm e nd e d by th e locally 
designat e d official of th e LEA or non public s chool by which 
th e hold e r is e mploy e d. For purpos es of thi s Rul e , "y e ar" m e ans 
not less than six succ e ssiv e cal e ndar months of full tim e 
employm e nt in one LEA or non public s chool with an approv e d 
program p l an. 

fH Each LEA shall d e v e lop a comprehensiv e program 
plan for initially c e rtifi e d p e rsonn e l and pr ese nt th e 
plan to the SBE for approval. Non public s chool s that 
have — a — stat e approved — pten — te — admini s t e r — the 
c e rtificate ren e wal program may also submit a plan 
for approval. Both LEA s and non pub l ic schools mu s t 
updat e th e ir plans by Octob e r 1 5 of e ach y e ar and 
submit those plans to the SBE. Each plan mu s t: 
(A4 d e scrib e ad e quat e provisions — for e ffici e nt 

management of the program; 
(&) provid e for formal ori e ntation for initially 
c e rtifi e d — p e r s onn e l — d e scribing — availabl e 
s e rvic es , training opportuniti es and th e proc e s s 
for achi e ving a continuing c e rtificat e ; 
(€) provid e for th e assignm e nt of a m e ntor t e am or 
support t e am, as d e t e rmin e d by th e LEA or 
non public school, for e ach initially c e rtifi e d 
p e rson; 
(©) provid e for th e principal or principal's d e sign ee 
to share r e sponsibility for providing support, 
where th e LEA or non public school d ee ms a 
mentor t e am to be the appropriate support; 
(E) includ e on th e s upport team a care e r status 
t e ach e r, th e principal or principal' s d e signee, 
and — a — generalist — or — a — s p e ciali s t — in 
curriculum/in s truction. Other personnel such as 

H4E m e mb e r s or c e ntral offic e 

sup e rvi s or/admini s trator s taff may be used as 
r es ourc es to th e t e am as needed; 
{¥) provid e for a minimum of thr ee ob s ervations 
p e r y e ar, u s ing th e first fiv e function ar e as of 
the — North — Carolina — T e acher — Performanc e 
Apprai s al In s trum e nt^Initial C e rtification for 
t e ach e rs, the first of which must be for at l e ast 
on e p e riod or instructional activity, pr e c e d e d 
by a pr e conf e renc e and follow e d by a po s t 
conf e renc e . Th e oth e rs may b e unannounc e d 
but must b e for at l e a s t on e p e riod or 
instructional activity and b e follow e d by a post 
conf e r e nc e . All p e r s on s who ob se rv e teach e rs 



13:18 



NORTH CAROLINA REGISTER 



March 15, 1999 



1509 



PROPOSED RULES 



must b e train e d in th e us e of th e First fiv e 
function ar e as of th e p e rformanc e appraisal 
instrum e nt for t e ach e rs. Th e fir s t obs e rvation 
must occur b e for e Octob e r 30. th e se cond must 
occur b e tw ee n Octob e r 30 and January' 1 5, and 
th e third must occur aft e r January 15 and 
b e for e April 15; 

{&) provid e for th e pr e paration of an individualiz e d 
prof e ssional — d e v e lopm e nt — plart — fer — eae^i 
initially certified person that id e ntifies goals. 
s trat e gi e s and progr e ss toward improving 
prof e s s ional s kills; 

fH) provid e for s tructur e to id e ntify' and d e liv e r 
se rvic e s and t e chnical as s i s tanc e n ee d e d by 
initially c e rtifi e d p e rsonn e l; 
fB provid e for maint e nanc e of a cumulativ e 
portfolio — that — contains — the — prof e s s ional 
development plan and official docum e ntation 
of p e rformanc e in th e fir s t fiv e function ar e a s 
of th e p e rformanc e appraisal instrum e nt; 

(J) provid e — fer — the — tim e ly — transf e r — of th e 
cumulativ e portfolio to additional employing 
LEA s within th e s tat e upon r e qu es t of an 
initially c e rtifi e d e mploy ee ; 

{¥^ assur e that th e program plan was develop e d 
tog e th e r with IHE(s) having approv e d t e acher 
e ducation — program s — and — d e scrib e — their 



W 






program and mak e r e comm e ndations; and 

docum e nt that th e LEA or non public school 

has adopted the plan. 

(3) No later than April — 15 of th e s e cond y e ar of 

e mploym e nt of th e initially — c e rtifi e d p e r s on, th e 

locally d e signat e d official s hall determine wh e th e r th e 

p e rson will b e r e comm e nd e d for conv e rsion to a 

continuing — c e rtificat e . — The — official — mak e s — this 

d e t e rmination bas e d on the information contain e d in 

th e holder's cumulativ e portfolio. Th e official s hall 

not r e comm e nd for conv e rsion any p e rson who has 

not p e rform e d "at standard" or high e r on each of th e 

first fiv e function areas of th e p e rformanc e appraisal 

instrum e nt for t e acher s on th e final ob se rvation prior 

to April 15 of th e se cond y e ar of e mplo>'m e nt. 

(A) Th e official makes th e r e commendation on a 

form — pr es crib e d — by th e d e partm e n t: — The 

d e partm e nt r e vi e w s e ach r e comm e ndation to 

dete rmin e wh e th e r th e p e rson ha s in fact 

achi e v e d at l e ast th e r e quir e d at standard 

p e rformanc e le v e l. If th e p e rson has achi e v e d 

th e r e quir e d p e rformance level, the d e partm e nt 

shall approve th e r e comm e ndation of th e 

locally d e signat e d official. If th e p e rson has not 

achi e v e d the r e quir e d p e rformance lev e l, th e 



d e partm e nt s hall not approv e th e issuanc e of a 
continuing c e rtificat e . 

Any p e rson not r e comm e nded for conv e rsion 
from an initial c e rtificat e to a continuing 
c e rtificat e may hav e that action reviewed by 
filing a cont es t e d cas e p e tition in accordance 
with Articl e 3 of Chapt e r 150B of the General 
Statut e s. As an alt e rnativ e , th e p e rson may 
contact an approv e d t e ach e r e ducation program 
and compl e t e a program of study as pr e scrib e d 
by th e IHE to corr e ct deficiencie s . Aft e r th e 
p e rson succ e ssfully compl e t es th e r e quir e d 
additional training, the IHE must r e comm e nd 
th e p e rson for a n e w initial c e rtification. Th e 
hold e r must th e n s atisfy' th e p e rformance 
r e quir e m e nt s of this Subparagraph. 
{^ Th e continuing c e rtificat e authoriz e s professional 
school — s e rvic e — en — a — continuing — basis. — This 



continuous involv e m e nt with th e program; 
d e scrib e a plan for the systematic evaluation of 
the — program — te — as s ur e — program — quality. 
e ff e ctiv e n e s s , and e ffici e nt manag e m e nt; 
d e signat e — a — p e rson — te — v e rify' — s ucc es sful 
completion of the two y e ar initially c e rtifi e d .0305 



cla s sification includ e s three cat e gori es : 
{A) t e ach e r (cla s s "A" und e rgraduat e and clas 
graduat e ) in th e following ar e as: 
fi) e l e m e ntary e ducation. K 6; 
middle grades e ducation, 6 9; 
se condary s p e cialization s . 9 12; 
sp e cial ar e as. K 12; and 
occupational, 
administrator/ s up e rvisor; and 
stud e nt se rvic e p e r s onn e l. 



j^^ 



(i^) 






Authority G.S. ll5C-12(9)a; N.C. Constitution. Article IX, Sec. 
5. 



LICENSES FOR NON-TEACHER EDUCATION 
GRADUATES 

(a) A person who has not graduated from an approved teacher 
education program who later desires to teach shall have his/her 
credentials evaluated by an approved IHE or teacher education 
consortium. The person shall satisfy the assessment of his/her 
needs and be recommended by the IHE or consortium for 
c e rtification, a license. 

(b) Persons who have been selected for employment by a 
LEA under the lateral entry provisions of G.S. 1 15C-296(c) may 
obtain c e rtification a license as follows: 

(I) Th e applicant and th e LEA must fil e a joint 
application — with — the — d e partm enti — including — ah 
s upporting credits, e xp e ri e nc e , t e st scor es , and oth e r 
p e rtin e nt information. To be eligible for a lateral entry 
license, a person shall: 

(A) have attained a bachelor's degree in the license 
area from a regionally-accredited IHE; 

(B) be recommended for a lateral entry license by 
the employing LEA; and 

(CJ have had a minimum cumulative grade point 
average of at least a 2^ or have passed the 
NTE PRAXIS 1 exams (Preprofessional Skills 
Tests in Reading. Writing, and Mathematics) 
and have attained one of the following: 
jjj a grade point average of at least 3.0 on 



1510 



NORTH CAROLINA REGISTER 



March 15, 1999 



13:18 



PROPOSED RULES 



all work completed in the senior year; 
(ii) a grade point average of at least 3.0 in 

the major; or 
(iii) a grade point average of at least 3.0 on a 
minimum of J_5 semester hours of 
coursework completed within the last 
five years. 
(2) Th e d e partment issu e s lat e ral e ntrv c e rtification in th e 
same area s and class e s as it issu e s to r e gular t e ach e r 
education graduat e s. A person who holds a lateral 
entrv license shall complete a program that includes 
the following components: 

(A) The employing LEA shall assess the person's 
transcripts and experience in collaboration with 
^ approved teacher education program of an 
IHE or an alternative licensure program 
approved by the SBE. If the collaboration 
cannot occur, the LEA must document its 
efforts toward collaboration or the reasons why 
collaboration did not occur. The LEA must 
send that documentation with its 
recommendation that the person be issued a 
lateral entry license. As a result of the 
assessment. the LEA may identify 
competencies for which the person must 
receive training. 

(B) TTie employing LEA shall commit in vvriting to: 

(i) provide a rvvo-week pre-uork 
orientation that includes lesson 
planning. classroom organization, 
classroom management, and an 
overview of the ABCs Program 
including the standard course of study 
and end-of-grade and end-of-course 
testing; 

(ii) assign the person a mentor on or before 
the first day on the job; 

(iii) provide working conditions that are 
similar to those for novice teachers; 

(iv) give regular focused feedback to the 
person for improving instruction; and 

(v) assist the person in accessing prescribed 
course work and professional 
development opportunities. 
(O The person shall attain passing scores on 

appropriate NTE specialty area or PRAXIS 2 

exams during the First two years of assignment. 

(D) TTie person shall complete a staff development 
program that includes a two-week training 
course prior to beginning the work assignment- 
together with nine renewal hours or six 
semester hours each year. 

(E) The person shall successfully complete the 
three-year initial licensure program jn the 
lateral entrv license area the person is seeking. 

(F) The person shall present evidence from 
evaluations that demonstrates three years 
successful experience in the license area the 



person is seeking. 
(G) The person shall attain a passing score on the 
PRAXIS principles of learning and teaching 
examination upon completion of the training 
identified as a result of the assessment 
described in Part (b)(2)(A) of this Rule. 
(H) The person shall complete all requirements of 
this Rule within five years of becoming eligible 
for a lateral entrs license. 
(I) The IHE or alternative licensure program 
approved by the SBE shall recommend to the 
Department that the person be licensed. 
(5^ Th e d e partm e nt issu e s th e s e c e rtificat e s s ubj e ct to th e 

provisions of Rul e .03 1 1 of this S e ction. 
(4) T e ach e r s — wl=ie — obtain — c e rtification — under — this 
Paragraph mu s t hav e th e ir cr e d e ntials e valuat e d by an 
LHE — which has an approv e d t e ach e r e ducation 
program. Th e IHE s hould consid e r th e t e acher's 
knowledg e and skill from pr e viou s training and 
e xp e rience as it r e lat e s to thos e comp e t e nci e s r e quir e d 
for th e ar e a of c e rtification. 
<-§-) Th e teach e r may — substitut e succ ess ful — t e aching 

e xp e rience for th e s tud e nt t e aching r e quir e m e nt. 
f6) Th e teach e r must obtain a s atisfactory s cor e on th e 
NTE at th e n e xt availabl e administration of th e NTE, 
or may substitut e th e Graduat e R e cord Examination, 
in order to maintain a valid c e rtificat e . 
f74 P e r s ons who hav e fulfill e d all d e gr ee r e quir e m e nt s 
other than som e minor or t e chnical d e fici e ncy may 
apply for c e rtification und e r this Paragraph. Th e 
person may not hav e mor e than six se m es t e r hours' 
shortag e and th e p e rson mu s t sati s fr' that shortag e 
b e for e the b e ginning of th e n e xt fiscal y e ar. 

(c) A person who is qualified to hold at least a class "A" 
teaching c e rtificat e license may be issued additional areas of 
c e rtification licensure on a provisional basis as needed by LEAs. 
The person must satisfy deficiencies for full c e rtification 
licensure at the rate of six semester hours per year. The person 
must complete this yearly credit before the beginning of the 
following school year and the credit must be directly applicable 
to the provisional area(s). The person must complete all credit 
requirements by the end of the fifth year of provisional 
c e rtification, licensure. 

(d) The Department shall issue an emergency license to 
persons who hold at least a baccalaureate degree but who do not 
qualify for a lateral entry license. The emergenc\ license shall be 
valid for one year and may not be renewed. When U requests an 
emergency license for a person, the LEA must document that no 
appropriately licensed professionals or persons who are eligible 
for a lateral entry license are available to accept the position. 

(1) To be eligible for an emergency license, the person 
must have attained a bachelor's degree from a 
regionally-accredited IHE and be recommended by the 
employing LEA. 

(2) A person who holds an emergency license shall 
complete a program that includes the following 
components: 

(A) The employing LEA shall commit in writing to: 



13:1H 



NORTH CAROLINA REGISTER March 15, 1999 



1511 



^^^^^tm 



PROPOSED RULES 



(i) provide a 

orientation that 



two-week 



pre-work 
includes lesson 



planning. 

classroom 

overview 



(BJ 



IQ 



classroom organization, 
management, and an 

of the ABCs Program 

including the standard course of study 

and end-of-grade and end-of-course 

testing; 
(ii) assign the person a mentor on or before 

the first day on the job; 
(iii) provide working conditions that are 

similar to those for novice teachers; 
(iv) give regular focused feedback to the 

person for improving instruction; and 
(v) assist the person in obtaining a teaching 

license. 
The person shall complete a staff development 
program that includes a two-week training 
course prior to beginning the work assignment. 
The LEA shall provide the person with on- 
going support designed to enhance the person's 
classroom teaching performance. 



Authorih'G.S. II5C-I2(9)a: N.C. Constitution, Article IX, Sec. 
5. 

.0306 LICENSE ENDORSEMENT 

Within the operation of approved programs, IHEs may 
recommend persons who qualify for full c e rtification licensure 
for an endorsement to that c e rtification, licensure. TTie 
Department is s u e s shall issue an endorsement based on a 
minimum of 18 hours in a specific content area where these 
hours are specifically related to competencies required for full 
c e rtification licensure in that subject area. C e rtificat e License 
endorsements are shall be restricted to less than half-time 
teaching assignments. 

Authority G.S. ]15C-12(9)a: N.C. Constitution, Article LY, Sec. 
5. 

.0307 LICENSE RENEWAL 

(a) C e rtificat e s Licenses shall be valid for a period of five 
years from the effective date of issuance. Holders must renew 
their c e rtificat es licenses within each five-year period. TTie 
Department shall apply license renewal credit to the person's 
c e rtificat e license field(s) and professional duties. 

(b) The Department shall base renewal or reinstatement of a 
c e rtificate license on 15 units of renewal credit. A unit of credit 
is equal to one quarter hour or two-thirds of a semester hour of 
IHE college or university credit, JO hours of professional 
development, or one school year of teaching experience. The 
D e partm e nt shall not record l e ss than on e cr e dit on a c e rtificat e . 
F or th e ir o\ ^ ti e mp l oy ees , LEAs may approv e staff d e v e lopm e nt 
activities that carry l e s s than on e unit of credit. 

(c) Currently employed personnel shall maintain a 
profes s ional an individual growth plan. These persons may 
obtain renewal credit for the following activities: 

(1) college or university cr e dit activiti es ; credit; 



(2) teaching experience (one unit for every each year); 

(3) completion of the National Board for Professional 
Teaching Standards certification process; 

{iM4) local in se rvic e cour ses or workshops which carry at 
l e ast on e unit of r e n e wal cr e dit and which completion 
of activities that meet the following criteria: 

(A) t e n clock hours of dir e ct training by th e 
in s tructor will e qual one unit of renewal credit; 
The activity shall be delivered in a minimum of 
10 clock hours (one unit of renewal credit) 
over time with on-the-job application, 
feedback, and follow-up. 

(B) cont e nt and instructional activiti e s d e sign e d in 
a se qu e ntial mann e r to d e v e lop sp e cifi e d 
comp e t e nci es of a s p e cific population; The 
activity shall have identified goals and 
objectives that are designed to increase 
knowledge or skills in the person's license area 
or job assignment. 

(C) The activity shall include focused content and 
instruction that are sequenced to develop 
specified competencies of a specific 
population. 

f€-KD) The activity shall be conducted kd by 
instructional personnel directly supervised by 
the sponsoring school unit; and unit or 
employer. 

<J>KE) cr e dit i s grant e d on th e basis of program 

compl e tion — and achi e v e m e nt of sp e cifi e d 

individual p e rformanc e , which i s d e t e rmin e d 

by — individual — e valuation — fer — s p e cifi e d 

comp e t e nci e s; The activity shall include a 

focused evaluation designed to gauge the 

change in learner knowledge or skill and to 

guide the development of future programs. 

f44(5) independent study of no more than five units of 

renewal credit per five-year renewal period which 

meets the following criteria: 

(A) teachers and other c e rtifi e d licensed personnel 
help to develop local independent study 
procedures which the superintendent keeps on 
file and periodically sends to each c e rtifi e d 
licensed employee; and 

(B) the employee and the superintendent or his or 
her designee plan the experience in advance, 
including identification of competencies to be 
acquired and an evaluation to determine 
satisfactory achievement of those 
competencies. 

(d) Each LEA LEAs and approved governing boards of 
schools are responsible for assuring that all local courses and 
courses, workshops and independent study activities which do 
not carry IHE credit meet the standards contained in this Rule. 

(e) LEAs may develop an alternative license renewal plan that 
is competency-based and results-oriented. The plan must 
describe the connection among professional development, the 
school improvement plan, and the individual's license area or 
job responsibilities through processes such as peer review and 



7572 



NORTH CAROLINA REGISTER 



March 15, 1999 



13:18 



PROPOSED RULES 



annual evaluation. The plan may waive specific hour 
requirements that a licensed employee must meet and focus 
instead on knowledge and skill acquired by participants. The 
plan must include outcome measures and must be approved by 
the Department in advance of its completion. 

(e){D Ag e nci e s which the D e partm e nt authoriz e s to 
administ e r ren e wal requirem e nts locally shall LEAs must adopt 
a procedure to determine the appropriateness of credit in 
advance of the renewal activitv'. activities. In determining 
appropriateness the ag e ncy LEA must consider direct 
relationship to critical job responsibilities, suitabilitv' of th e 
content l e v e l and prop e rly establish e d school improvement 
plans, and SBE strategic priorities to properly establish credit for 
the activity. Each ag e ncy LEA must report on participation in 
and effectiveness of ren e wal professional development activiti es 
as th e Department r e qu e sts, to the North Carolina Professional 
Teaching Standards Commission on an annual basis. 

ff Hg) Persons who hold a North Carolina c e rtificat e license 
but who are not currently employed in the public schools or by 
approved boards may earn renewal credit in college or university 
credit activities, or local courses and workshops on the same 
basis as currently employed persons. The Department shall 
evaluate the appropriateness of the credits based on their direct 
relationship to the license field, the suitability of the content 
level, and the requirements set out in Paragraph (c) of this Rule. 

Authority G.S. I15C-12(9)a: N.C. Constitution Article LX, Sec. 
5. 

.0308 EXPIRED LICENSES 

All expired c e rtificat es licenses are shall be invalid until 
reinstated. An applicant must earn a minimum of 15 units of 
appropriate credit during the five-year period immediately 
preceding the date of application for reinstatement to be eligible 
for reinstatement. A reinstated c e rtificat e is license shall be valid 
for a five-year period which that begins from the date of 
completion of the required credits. 

Authority G.S. H5C-12(9Ja: N.C. Constitution, Article IX, Sec. 

5. 

.0309 RECIPROCITY IN LICENSURE 

Persons who have not completed an approved teacher 

education program in this state may be eligible for c e rtification 

a license by the Department at the class "A" level as follows: 

( 1 ) graduates of institutions outside the state which that 

are accredited by the National Council for 

Accreditation of Teacher Education, provided that: 

(a) the applicant seeks c e rtification a license in his 
major area(s) of preparation: 

(b) the applicant is recommended by the preparing 
institution for c e rtification a license in his 
major area(s) of preparation: 

(c) the recommendation is supported by an official 
transcript supplied by the institution; and 

(d) the applicant seeks c e rtification a license in an 
area or level of teaching for which the 
department provides c e rtification, a license. 



(2) teachers accepted fi-om other states under G.S. 1 1 5C- 
349 through I15C-358; 

(3) graduates who meet the standards developed by the 
National Association of State Directors of Teacher 
Education and Certification; and 

(4) teacher education graduates of accredited out-of-state 
institutions who do not meet the requirements of 
Items (l)-(3) of this Rule, who meet the following 
criteria: 

(a) The applicant is a graduate of an accredited 
senior college. 

(b) The Department awards c e rtification a license 
under this Paragraph only to classroom 
teachers at the bachelor's degree level. 

(c) The Department issues a reciprocity c e rtificat e . 
license, which is a provisional c e rtificat e 
license valid for one year. The Department will 
remove the provisional limitation after the 
person has taught for one school year. 

(d) The c e rtificate license covers only the areas 
and levels in which the applicant holds, or is 
qualified to hold, an out-of-state c e rtificat e . 
license. 

(e) A person who holds a reciprocity c e rtificat e 
license must satisfy the renewal requirements 
of Rule .0307 of this Secfion. 

(f) The applicant must hold or be qualified to hold 
the highest grade current c e rtificat e license in 
the state in which the applicant completed the 
bachelor's level teacher education program. 

.Authority G.S. 115C-12(9)a: N.C. Constitution. Article L\', Sec. 

5. 

.0311 TEMPORARY PERMIT 

(a) A candidate for c e rtification a license who has not met the 
standard examinations requirement may receive a temporary 
permit if: 

( 1 ) the candidate did not know that a minimum standard 
examination score was required for c e rtification; a 
license; and 

(2) the candidate has not had the opportunity to satisfy 
this requirement after becoming aware of it. 

(b) A temporar> permit is shall be valid for the remainder of 
the fiscal year during which certification the permit is 
established. Graduates of in-state approved programs are shall 
not be eligible for a temporary permit. 

Authority G.S 115C-12(9)a.: N.C Constitution. .Article LY, Sec. 
5. 

.0312 LICENSE SUSPENSION AND REVOCATION 

(a) The SBE may deny an application for c e rtification a 
license or may suspend or revoke a c e rtificat e license issued by 
the department only for the following reasons: 

(1) fraud, material misrepresentation or concealment in 
the application for certification; the license; 

(2) changes in or corrections of the certificat e license 



J3:]8 



NOR TH CAROLINA REGISTER March 15,1 999 



1513 



PROPOSED RULES 



documentation which maiz e s that make the individual 
inehgibie to hold a c e rtificat e ; license; 

( 3 ) conviction or entry of a plea of no contest, as an adult, 
of a crime if there is a reasonable and adverse 
relationship between the underlying crime and the 
continuing ability of the person to perform any of 
his/her professional fiinctions in an effective manner; 

(4) final dismissal of a person by a local board pursuant 
toG.S. 115C-325(e)(l)b., if there is a reasonable and 
adverse relationship between the underlying 
misconduct and the continuing ability of the person to 
perform any of his/her professional functions 
effectively; 

(5) final dismissal of a person by a LEA under G.S. 
115C-325(e)(l)e.; 

(6) resignation from employment with a LEA without 30 
work days' notice, except with the prior consent of the 
local superintendent; 

(7) revocation of a c e rtificat e license by another state; aftd 

(8) any other illegal, unethical or lascivious conduct by a 
person, if there is a reasonable and adverse 
relationship between the underlying conduct and the 
continuing ability of the person to perform any of 
his/her professional functions in an effective mann e r. 
manner; and 

(9) Failur e failure to report revocable conduct as required 
under Paragraph (b) of this Rule. 

(b) In addition to any duty to report suspected child abuse 
under G.S. 7A-543, any superintendent assistant superintendent, 
associate superintendent, personnel administrator or principal 
who knows or has substantial reason to believe that a c e rtifi e d 
licensed employee of the LEA has engaged in behavior that 
would justify revocation of the employee's c e rtificat e license 
under Subparagraphs (3). (4) or (8) of Paragraph (a) of this Rule 
and which behavior involves physical or sexual abuse of a child 
shall report that information to the Superintendent of Public 
Instruction. For purposes of this Section, the term "physical 
abuse" m e an s shall mean the infliction of serious physical injury 
other than by accidental means and other than in self-defense. 
The term "sexual abuse" m e ans shall mean the commission of 
any sexual act upon a student or causing a student to commit a 
sexual act. regardless of the age of the student and regardless of 
the presence or absence of consent. This Paragraph appli es shall 
apply to acts that occur on or after October 1 . 1993. 

(c) Upon the receipt of a written request and substantiating 
information from any LEA. local superintendent or other person 
in a position to present information as a basis for the suspension 
or revocation of a person's c e rtificat e , license, the 
Superintendent of Public Instruction will conduct an 
investigation sufficient to determine whether reasonable cause 
exists to believe that the person's c e rtificat e license should be 
suspended or revoked. 

( I ) If the Superintendent determines that reasonable cause 
exists to believe that the person's c e rtificat e license 
should be suspended or revoked on one or more of the 
grounds specified in Paragraph (a) of this Rule, the 
Superintendent shall prepare and file written charges 
with the SBE. 



(2) The SBE will review the written charges and 
determine whether the person's c e rtificat e license 
should be suspended or revoked based on the 
information contained in the written charges. If the 
SBE determines that the written charges constitute 
grounds for suspension or revocation, it shall provide 
the person with a copy of the written charges, and 
notify the person that it will revoke the person's 
c e rtificat e license unless the person, within JO 60 days 
of receipt of notice, initiates administrative 
proceedings under Article 3. G.S. 150B. The notice 
will be sent certified mail, return receipt requested. 

(3) If the person initiates administrative proceedings the 
SBE will defer final action on the matter until receipt 
of a proposed decision as provided for in G.S. 150B- 
34. If the person does not initiate administrative 
proceedings within 50 60 days of receipt of notice, the 
SBE may suspend or revoke the person's c e rtificat e 
license at its next meeting. 

(d) The SBE may suspend an individual's c e rtificat e license 
for a stated period of time or may permanently revoke the 
c e rtificat e , license, except as limited by G.S. 1 I5C-325(o). 

(e) The SBE may reinstate a suspended or revoked c e rtificat e 
license or may grant a new c e rtificat e license after denial of 
c e rtification a license under Paragraph (a) of this Rule upon 
application and showing of good cause by the individual. TTie 
burden of proving good cause is on the applicant. The SBE will 
not grant any request for reinstatement or for granting a new 
c e rtificat e license unless it finds as facts that: 

( 1 ) the action that resulted in revocation or denial of 
certification the license did not involve abuse of 
minors; possession, sale or use of controlled 
substances; moral turpitude or grounds listed in G.S. 
I15C-325{e)(I)b. ore.; 

(2) the person has no record of subsequent behavior that 
could have resulted in c e rtificat e license revocation; 
and 

(3) there is no court order or judicial determination that 
would prohibit the person from returning to or holding 
a c e rtificat e d licensed position. 

(f) The SBE will notify all other states of all actions which 
involve the suspension, revocation or reinstatement of a 
certificate. 

Authority- G.S. 115C-12l9)a: N.C. Constitution. Article L\'. Sec. 
5. 

.0313 CRIMINAL HISTORY CHECKS 

(a) An LEA may obtain criminal history checks on applicants 
for employment as provided in G.S. 1 15C-332 and on applicants 
and current employees as provided in G.S. 1 14- 1 9.2(a). 

(b) An LEA shall not make any employment decision based 
solely upon the criminal history check (computer printout) 
provided by the Department of Justice whether provided 
pursuant to G.S. 1 15C-332 or G.S. 1 I4-I9.2(a). An LEA shall 
obtain from the repository of the record a certified copy of the 
applicant's or employee's conviction or shall consult with legal 
counsel prior to making a final employment decision based on 



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the conviction. 

(c) An LEA shall maintain data from a criminal history' check 
from Department of Justice in paper format only, in a locked, 
secure place, separate from the individual's personnel file. Only 
those officials who have been designated by the local board of 
education as having a need to know the results of a criminal 
history check may obtain access to the records. Certified copies 
of records of convictions are public records and need not be 
maintained in accordance with this Rule. 

(d) In the event that the LEA discovers as a result of a 
criminal history check from Department of Justice that any 
applicant or o mployco s employee who possesses a c e rtificat e or 
license issued by the SBE has a criminal history, the LEA shall 
notify in writing the SBE office of legal counsel and shall submit 
to that office a certified copy of the record of conviction or 
convictions or information of where to obtain the record of 
conviction, including the person's name, criminal case number 
and the counfy of conviction. The office of legal counsel may 
initiate license or c e rtificat e revocation as appropriate. 

(e) Nothing in this Rule is intended to prohibit suspension 
with or without pay or demotion or dismissal pursuant to the 
provisions of G.S. 1 1 5C-325 without any requirement that there 
be actual conviction of a crime. 

Authorin- 1995 S.L. c. 373. s. 3. 



SECTION .0500 



PERFORMANCE APPRAISAL 
SYSTEM 



.0501 GENERAL PROVISIONS 

(a) Each LEA shall provide for the annual evaluation of all 
professional employees. The LEA bas e s shall base this 
evaluation upon performance standards and criteria adopt e d by 
th e SBE. contained in this Rule . LEAs may adopt additional 
standards and criteria which that are not in conflict with those 
adopted by the SBE SBE, the General Statutes, or with this 
Section. 

(b) The person to whom an employee appropriately reports as 
designated in the job description, or thos e p e rsons' d e sign ee s that 
person's designee as approved by the superintendent, e valuat e s 
shall evaluate the employee. 

(c) The LEA shall inform all personnel of their job 
descriptions and the performance standards and criteria 
applicable to their position at the time of employment or the 
beginning of the school year 

(d) Each LEA shall provide orientation on the performance 
appraisal sy s t e m process to its personnel. 

(e) The performance appraisal provid e s: shall provide: 

(1) a basis for self-improvement by professional 
personnel; 

(2) data for plarming staff development activities for 
personnel at the school, administrative unit, regional 
and state levels; and 

(3) data for employment decisions. 

(f) Each person may place written comments or di s agr ee m e nt 
regarding the evaluation on their performance appraisal 
instruments. 

(g) Each LEA shall adopt a rating scale for the evaluation « 



accordanc e with a or use the scale or scales which th e SBE 
adopt s , recommended by the SBE. 

(h) The Superintend e nt of Public In s truction r e comm e nds and 
the SBE adopts and amends shall adopt and amend from time to 
time job descriptions and performance standards and criteria for 
professional positions. The public may obtain copies of these 
items from the Department. 

Authority G.S. 115C-326. 

SUBCHAPTER 6D - INSTRUCTION 

SECTION .0100 - CURRICULUM 

.0103 GRADUATION REQUIREMENTS 

(a) In order to graduate and receive a high school diploma, 
public school students must meet the requirements of Paragraph 
(b) of this Rule and attain passing scores on competency tests 
adopted by the SBE and administered by the LEA. Students who 
satisfy all state and local graduation requirements but who fail 
the competency tests will receive a certificate of achievement 
and transcript and shall be allowed by the LEA to participate in 
graduation exercises. 

(1 ) The passing score for the competency test, which is 
the same as grade-level proficiency as set forth in 
Rule .0304 of this Subchapter, shall be level 111 or 
higher The four possible levels of achievement on 
these tests and for all tests administered pursuant to 
Section .0300 of this Subchapter, shall be: 

(A) Level 1 - fails to achieve at a basic level. 
Students performing at this level do not have 
sufficient mastery of knowledge and skills in 
this subject area to be successful at the next 
grade level. 

(B) Level II - achieves at a basic level. Students 
performing at this level demonstrate 
inconsistent mastery of knowledge and skills 
that are fundamental in this subject area and 
that are minimally sufficient to be successful at 
the next grade level. 

(C) Level HI - achieves at a proficient level. 
Students performing at this level consistently 
demonstrate mastery of grade level subject 
matter and skills and are well prepared for the 
next grade level. 

(D) Level IV - achieves at an advanced level. 
Students performing at this level consistently 
perform in a superior manner clearly beyond 
that required to be proficient at grade level 
work. 

(2) Special education students may apply in writing to be 
exempted from taking the competency tests. Before it 
approves the request, the LEA must assure that the 
parents, or the child if aged 18 or older, understand 
that each student must pass the competency tests to 
receive a high school diploma. 

(3) Any student who has failed to pass the competency 
tests by the end of the last school month of the year in 



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PROPOSED RULES 



which the student's class graduates may receive 
additional remedial instruction and continue to take 
the competency tests during regularly scheduled 
testing until the student reaches maximum school age. 

(b) In addition to the requirements of Paragraph (a) of this 
Rule, students must successfully complete 20 course units in 
grades 9-12 as specified in this Paragraph. 

(1) Effective with the class entering ninth grade for the 
1998-99 school year, the 20 course units must 
include: 

(A) four units in English, which must be English I, 
II, III, and IV; 

(B) three units in mathematics, one of which must 
be Algebra 1; 

(C) three units in social studies, one of which must 
be in government and economics, one in 
United States history and one in world studies; 

(D) three units in science, one of which must be 
biology, one a physical science, and effective 
with the class of 2001, one earth/environmental 
science; 

(E) one unit in physical education and health; and 

(F) six units designated by the LEA, which may be 
undesignated electives or courses designated 
from the standard course of stud> . 

(2) LEAs may count successful completion of course 
work in the ninth grade at a school system which does 
not award course units in the ninth grade toward the 
requirements of this Rule. 

(3) LEAs may count successful completion of course 
work in grades 9-12 at a summer school session 
toward the requirements of this Rule. 

(4) LEAs may count successful completion of course 
work in grades 9-12 at an off-campus institution 
toward the requirements of this Rule. No high school 
may approve enrollment in post-secondary institutions 
during the regular school year in excess of five 
percent of its enrollment in grades 10-12 except as 
allowed by the SBE. 23 NCAC 2C .0301 governs 
enrollment in community college institutions. 

(c) Effective with the class of 2002. 2001, all students must 
demonstrate computer proficiency as a prerequisite for high 
school graduation. The passing scores for this proficiency shall 
be 47 on the multiple choice test and 49 on the performance test. 
This assessment shall begin with all e ighth graders during the 
1997 9 8 s chool y e ar, at the eighth grade. A student with 
disabilities shall demonstrate proficiency by the use of a 
portfolio if this method is required by the student's lEP. 

(d) Effective with the class entering ninth grade for the 1 992- 
93 school year, special needs students as defined by G.S. 1 1 5C- 
109, excluding gifted and pregnant, who do not meet the 
requirements for a high school diploma will receive a graduation 
certificate and shall be allowed to participate in graduation 
exercises if they meet the following criteria: 

(I) successful completion of 20 course units by general 
subject area (4 English. 3 math. 3 science, 3 social 
studies, 1 health and physical education, and 6 local 
electives) under Paragraph (b) of this Rule. These 



students are not required to pass the specifically 
designated courses such as Algebra I, Biology or 
United States history, 
(2) completion of all lEP requirements. 

Authority G.S. 115C-12(9)c.: ]15C-8](a): N.C. Constitution, 
Article LX. Sec. 5. 

SECTION .0200 - TEXTBOOKS 

.0210 DISPOSITION OF OLD TEXTBOOKS 

Local boards of education will LEAs may dispose of 
textbooks which are no longer listed on the state-adopted 
textbook list only as follows: by sale, gift, or exchange. LEAs 
shall remit the proceeds of sale to the Department. 

(4^ Local board s of e ducation may not giv e t e xtbooks 
r e plac e d by th e n e w adoption to any p e rson, firm, 
corporation or institution for us e wh e r e tuition is 
charg e d — or — for — r es al e — e xc e pt — as — provid e d — m 
s ubs e ction s ( 4 ) and (5) of this Rul e . 
{¥) Local board s of e ducation may us e th e s e textbooks or 
giv e th e m to stud e nts for use as suppl e m e ntary 
mat e rial. 
(^ Local boards of e ducation may s e ll th e s e t e xtbooks 

only for scrap pap e r. 
(4) Local boards of education may donat e th e s e book s to 

oth e r stat e and local gov e rnm e ntal ag e nci es. 
{%>) Local boards of e ducation may donat e t e xtbooks to 
non profit organizations for us e in adult e ducation 
programs and in for e ign countri es to incr e as e th e 
g e n e ral lit e racy of th e p e opl e . 

Authority G.S 115C-89: I15C-102(b). 

SECTION .0300 - TESTING PROGRAMS 

.0301 TESTING REQUIREMENTS AND 

OPPORTUNITIES 

(a) All public school students enrolled in the grades for which 
the SBE adopts a test, including every child with disabilities, 
shall participate in the testing program unless excluded from 
testing as provided by 16 NCAC 6G .0305(g). 

(b) All public school students enrolled in the 1 0th, 1 1th and 
12th grade shall have at least one opportunity each school year 
to take the competency tests. LEAs shall administer the tests so 
that any student who does not pass the tests shall have an 
opportunity to receive remediation. A student who attains a 
passing score, as defined in 16 NCAC 6D .0103(a)(1). on a 
portion of the competency test does not need to retake the test. 
The LEA shall develop plans to provide remedial services to 
students who fail any of the competency tests, or who are 
identified as having a high risk of failing. The LEA shall design 
the plan to meet the needs of individual students. 

Authority G.S. 115C-12(9)c. 

.0302 TEST ADMINISTRATION 

(a) Employees of the LEA administer tests to students who 



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PROPOSED RULES 



are required or permitted to participate. 

(b) The Department supplies the tests to the LEAs. 

(c) LEAs shall: 

( 1 ) account to the Department for all tests received: 

(2) provide a locked storage area for all tests received: 

(3) prohibit the reproduction of all or any part of the test; 
and 

(4) prohibit their employees from disclosing the content 
of. or specific items contained in. the test to persons 
other than authorized employees of the LEA. 

(d) LEAs must monitor test administration procedures. If 
school officials discover any instance of improper administration 
and it determines that the validity of the test results has been 
affected, they must notify' the local board of education and order 
the affected students to be retested. 

(e) The Superintendent of Public Instruction may conduct 
audits of LEAs if he receives written complaints which allege 
improper test administration, and he may require the retesting of 
students. 

(f) The Department scor e s or has scor e d all t e sts, and it 
provid e s scoring and int e rpr e tiv e s e rvic e s to th e LEA. shall 
provide the mechanism for the scoring of al] North Carolina 
mandated tests. In addition the Department shall provide score 
interpretation services to the LEA. 

Authority G.S. I15C-12(9k. 

.0303 ACCOUNTABILITY COORDINATOR 

(a) The local superintendent shall designate one or more 
persons to serve as the local testing coordinator and 
accountability coordinator to assist in the local administration, 
reporting, and interpretation of tests and other accountability 
measures. 

(b) Coordinators must attend training sessions provided by 
the Department on the subject of proper test administration, 
scanning and scoring answer sheets and required processing of 
test materials. They must then conduct similar sessions within 
the LEA to provide this instruction to local test administrators 
and proctors. Coordinators shall arrange for the scanning, 
scoring, and reporting of results from tests adopted by the SBE. 

Authorities. l!5C-12(9)c. 

.0305 END-OF-COURSE TESTS 

(a) The LEA shall include each student's end-of-course test 
results in the student's permanent records and high school 
transcript. 

(b) The LEA shall give each end-of-course test within a 1 1 0- 
minute period within the final 10 days of school, the course. 

(c) LEAs shall use EOC test results as a part of the student's 
final grade. LEAs shall adopt policies regarding the use of EOC 
test results in assigning final grades. 

(d) Students who are enrolled for credit in courses in which 
end-of-course tests are required shall take the appropriate end- 
of-course test. 

(e) Students who are exempt from final exams by local board 
of education policy shall not be exempt from end-of-course tests. 

££) Each student shall take the appropriate end-of-course test 



the first time the student takes the course even if the course is an 
honors or advanced placement course. 

(g) Students shall take the appropriate end-of-course test at 
the end of the course regardless of the grade level in which the 
course is offered. 

(h) Students who are identified as failing a course for which 
an end-of-course test is required shall take the appropriate end- 
of-course test. 

Authorities. 115C-12(9lc.: 115C-8Ubl(4>. 

SUBCHAPTER 6E - STUDENTS 

SECTION .0200 - SCHOOL ATHLETICS AND SPORTS 
MEDICINE 

.0202 INTERSCHOLASTIC ATHLETICS 

(a) Only students in grades 7-12 may participate in 
interscholastic athletic competition. In order to qualify for public 
school participation, a student must meet the following 
requirements: 

( 1 ) The student must meet the residence criteria of G.S. 
1 15C-366(a). The student may participate only at the 
school to which the student is assigned by the LEA, 
or, if over the age requirements, the school to which 
the student would be assigned at the next higher grade 
level. 

(2) The student must meet age requirements at each grade 
level to participate. The principal must have evidence 
of the legal birth date of the student. A student who is 
ineligible to participate at one grade level due to age 
is eligible to participate at the next higher grade level 
only. However, no student may participate at the high 
school level for a period lasting more than eight 
consecutive semesters, beginning with the student's 
first entry into grade nine or participation on a high 
school team, whichever occurs first. 

(A) A student is eligible to participate in high 
school athletic contests during a school year if 
the student does not reach the 1 9th birthday on 
or before October 16 of that school year. 

(B) A student shall not participate on a ninth grade 
jimior high school team if the student becomes 

1 6 years of age on or before October 1 6 of that 
school year. 

(C) A student shall not participate on a seventh or 
eighth grade team if the student becomes 15 
years of age on or before October 1 6 of that 
school year. 

(3) In grades 9-12, the student must pass at least 75 
percent of the maximum of possible courses each 
semester and meet promotion standards established by 
the LEA. In grades 7 and 8, the student must m ee t 
s tat e and local promotion s tandards and maintain 
pa ss ing grad es e ach s e m es t e r, pass at least one less 
course than the number of required core courses each 
semester and meet promotion standards established by 
the LEA. Regardless of the school organization 



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PROPOSED RULES 



pattern, a student who is promoted from the eighth 
grade to the ninth grade automatically meets the 
courses passed requirement for the first semester of 
the ninth grade. 

(4) The student must receive a medical examination each 
year (365 days) by a duly licensed physician, nurse 
practitioner, or physician assistant, subject to the 
provisions of G.S. 90-9, 90-18.1, and 90-18.2. 

(5) The student may not participate after any of the 
following: 

(A) graduation; 

(B) becoming eligible to graduate; 

(C) signing a professional athletic contract; 

(D) receiving remuneration as a participant in an 
athletic contest; or 

(E) participating on an all-star team or in an all-star 
game that is not sanctioned by the association 
of which the student's school is a member. The 
student is ineligible only for the specific sport 
involved. 

(b) Each principal of a school which participates in 
interscholastic athletics must certify a list of eligible students for 
each sport. 

(c) Any student-athlete, coach or school official in grades 7- 
12 who is ejected from any athletic contest shall be penalized as 
follows: 

( 1 ) for the first offense, the person shall be reprimanded 
and suspended for the next game at that level of play 
(varsity or junior varsity) and for any intervening 
games at either level; 

(2) for a second offense, the person shall be placed on 
probation and suspended for the next two games at 
that level of play (varsity or junior varsity) and for any 
intervening games at either level; 

(3) for a third offense, the person shall be suspended for 
one calendar year; 

(4) A coach who is suspended at any level of grades 7- 1 2 
(middle school, junior high or high school) may not 
coach in any other grade level in grades 7- 1 2 during 
the period of suspension; 

(5) Penalties are cumulative from sport to sport and from 
sport season to sport season. If no member of the 
school's coaching staff is present to assume an ejected 
coach's duties, the contest shall be terminated by a 
forfeit. 

(d) LEAs may allow their schools to belong to the North 
Carolina High School Athletic Association (TMCHSAA), which 
has established as a minimum the rules adopted by the SBE. The 
NCHSAA may waive any eligibility requirement contained in 
this Rule, except the age requirement, if it finds that the rule fails 
to accomplish its purpose or it works an undue hardship when 
applied to a particular student. The NCHSAA may enforce 
penalties for the violation of this Rule at the high school level. 

(e) The LEA which has jurisdiction over the school may 
impose additional penalties. LEAs or conferences may adopt and 
impose penalties at the middle and junior high school levels. 

Authority G.S. 115C-47(4). 



SECTION .0300 - DRIVER TRAINING 

.0301 DRIVER TRAINING 

(a) In discharging their duty to provide a course of fraining 
and instruction in the operation of motor vehicles as set forth in 
G.S. 115C-216, local boards of education shall provide a 
program which meets the following standards and requirements: 

( 1 ) Principals shall enroll students who meet the criteria 
established by G.S. 20-88. l(a)(i), (iii) and (iv); 

(2) The program will be free of charge to eligible 
students; 

(3) Enrollees must obtain either a temporary learner's 
permit or a restricted instruction permit before they 
begin behind-the-wheel insfruction; 

(4) Classroom instruction will consist of at least 30 clock 
hours of instruction in the topics previously listed in 
the Healthful Living section of the Teacher 
Handbook. Beginning in school year 1992-93, 
students may take and pass a proficiency examination 
developed or designated by the Department of Public 
Instruction to waive the classroom instruction. Each 
student must complete a minimum of six hours of 
behind-the-wheel instruction; 

(5) The program will be reasonably available on a year- 
round basis to all eligible persons; 

(6) The local board of education will determine class size 
restrictions, but may not allow instruction in the car to 
less than two nor more than four students; 

(7) The local board of education will determine the 
amount of instruction per day for classroom or in-car 
instruction or a combination of both; 

(8) The local board of education will issue a certificate to 
students who satisfactorily complete the prescribed 
course; 

(9) Driver education instructors must possess a valid 
North Carolina driver's license and must have a 
driving record acceptable to the local board of 
education. In addition, instructors hired for driver 
education shall either: 

(A) hold a driver education certificate issued by the 
SBE; or 

(B) have non-certified status according to 
minimum standards established by Rule .0302 
of this Section. 

(10) Except as previously allowed by the SBE, the 
program shall not be provided during the regular 
instructional day. 

(b) Two or more local boards of education may jointly 
operate a program under a written agreement meeting the 
requirements of G.S. 160A-460 et seq. The agreement shall 
provide for one local board of education to assume 
administrative responsibility for the program. 

(cj For purposes of G.S. 20-11, G.S. 20-13.2(cI), and G.S. 
1 I5C-12(28), the following definitions shall apply: 

(1) "High school diploma or its equivalent" means and 
includes the General Equivalency Diploma (G.E.D.) 
and the adult high school diploma. 

(2) "Making progress toward obtaining a high school 



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PROPOSED RULES 



diploma" means that the student must pass at least 70 
percent of the maximum of possible courses each 
semester and meet promotion standards established by 
the LEA. 

(3) "Substantial hardship" means a demonstrable burden 
on the student or the student's family as evidenced by 
circumstances such as the following: 

(A) The parent is unable to drive due to sickness or 
other impairment and the student is the only 
person of driving age in the household. 

(B) The student requires transportation to and from 
a job that is necessary to the welfare of the 
student's family and the student is unable to 
obtain transportation by any means other than 
driving. 

(C) The student has been unable to attend school 
due to documented medical reasons, but the 
student is demonstrating the ability to maintain 
progress toward obtaining a high school 
diploma. 

(4) "A student who cannot make progress toward 
obtaining a high school diploma or its equivalent" 
shall mean a student who has been identified by the 
principal or principal's designee, together with the 
lEP committee or the school's student assistance 

having the capacity to meet the 
a high school diploma or jts 



team, as not 
requirements for 



equivalent due to a disability. 

(d] Each LEA shall determine the process by which decisions 
concerning the issuance of a driving eligibility shall be appealed. 

(e) TTie principal of a high school or the principal's designee 
shall notify the Division of Motor Vehicles whenever a student 
is no longer making progress toward obtaining a high school 
diploma or its equivalent or when the student has dropped out of 
school. 



(f) Each charter school, non-public school accredited by the 
SBE . and community college shall designate an official who 
shall notify the Division of Motor Vehicles whenever a student 
is no longer making progress toward obtaining a high school 
diploma. 

Authority G.S. 20-88.1: I15C-216. 

SUBCHAPTER 6G - EDUCATION AGENCY 
RELATIONS 

SECTION .0200 - ACCREDITATION 

.0202 ACCREDITATION PROCEDURES 

(e) For th e purpos es of this Rul e , th e accr e ditation y e ar 
b e gins with th e initial day of s taff ori e ntation for a particular 
acad e mic y e ar and e nd s with th e day b e for e ori e ntation for th e 
following acad e mic year. 

(b) Th e Sup e rint e ndent of Public In s truction appoints a stat e 
accr e ditation committe e , which make s r e comm e ndations to th e 
SBE conc e rning accr e ditation of LEAs . 

(e) LEA s that ar e curr e ntly accredit e d will r e tain that status 
as follows: 



fH LEA s not participating in th e p e rformance based 

accountability program will r e tain accr e dited status 

until the SBE takes formal action following th e fir s t 

fiv e y e ar r e view as d e scrib e d in Paragraph (f) of this 

Rul e . Accr e ditation und e r this Rul e is awarded on the 

ba s i s of th e LEA's s ucc e s s ful compl e tion of a 

five y e ar r e view. 

(3^ LEAs — participating — in — the — performance based 

accountability program will r e tain accredited status 

until th e SBE tal^ e s formal action on an annual r e port 

on th e p e rformanc e bas e d accountability' program 

s ubmitt e d by th e LEA. 

(4) During each accr e ditation y e ar, th e LEA mu s t e valuat e it s 

complianc e with e ach state accr e ditation s tandard, a s tho se 

standards are adopt e d and am e nd e d from tim e to tim e by th e 

f44 LEAs not participating in the performance based 

accountability program must e valuate complianc e with 

e ach p e rformanc e standard and with e ach opportunity 

s tandard. 

(3^ LEA s — participating — m — the — p e rformanc e bas e d 

accountability program must e valuat e complianc e with 

e ach stat e p e rformance standard. 

fe) Each LEA must r e port its complianc e d e cisions through 

th e annual r e porting proc e dure, using forms supplied by th e 

D e partm e nt. Th e D e partm e nt will r e vi e w the annual report and 

may issu e a chall e nge based on e rroneous or misleading 

information. In the absence of a chall e nge, the D e partment will 

pr e par e a summary report that indicates th e LEA's ov e rall 

complianc e with stat e accr e ditation standard s . After the annual 

r e porting and r e vi e w ha s b ee n compl e t e d, th e SBE may: 

fH continu e accr e dit e d status, if th e LEA hold accredit e d 
s tatus — an^ — continu es — to — meet — accreditation 
r e quir e m e nts; 
(3-) d e signat e th e LEA accr e dit e d with probationary 
warning, if th e LEA was accr e dit e d b e for e th e annual 
r e port and th e curr e nt annual r e port indicat es failur e 
to m ee t accr e ditation r e quir e m e nts; 
^ withdraw accr e dit e d status if th e LEA h e ld accr e dit e d 
with probationary warning status as a r es ult of th e 
previous annual report and the LEA continu e s to fail 
to m e et accr e ditation r e quir e ments; or 
f4^ r e instate accredited status if th e LEA was e ith e r und e r 
probationary' warning or not accr e dit e d on th e basis of 
the previous annual r e port, and th e LEA' s curr e nt 
annual r e port e stabli s h e s that it m ee ts accr e ditation 
r e quirem e nts. 
(f^ Ev e ry fiv e y e ars each LEA not participating in th e 
p e rformance based accountability program must und e rtak e an 
in depth r e vi e w in cooperation with D e partm e nt s taff in ord e r to 
e valuat e th e LEA's programs and op e rations according to SBE 
standards. 

(+) D e partm e nt and LEA p e rsonn e l jointly conduct 
in d e pth ass e ssm e nts of e ach program and operational 
ar e a, analyzing complianc e with SBE s tandards bas e d 
on all availabl e information. 
f3-) A s taff m e mb e r from e ach Department division or 
se ction that participat e s i n a joint ass e ssm e nt must 



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March 15, 1999 



1519 



PROPOSED RULES 



to the provisions of G.S. 115C 325(q)(l) or 115C-325(q)(n. 
(q)(2). or (q)(2a). the panel shall sit as an impartial tribunal to 
receive evidence and to decide on the basis of that evidence 
whether the principal, assistant principal, teacher, supervisor, or 
director, hereafter referred to as "the employee," shall be 
dismissed. The assistance team assigned to the school where the 
employee was assigned shall present rts the case against the 
employee. 

(b) Both the employee and the assistance team shall have the 
right: 

( 1 ) to be represented by counsel at the hearing; 

(2) to subpoena witnesses and documents; 

(3) to examine and cross-examine witnesses under oath; 
and 

(4) to present relevant evidence using witnesses and 
documents. 

(c) The panel of the SBE which conducts the hearing shall: 

( 1 ) give written notice to the parties of the time and place 
of the hearing; 

(2) make a complete record of the evidence received 
during the hearing; and 

(3) issue subpoenas for witnesses and documents on 
behalf of any party to the proceedings. 

(d) Except in the cas e of a principal who has been susp e nd e d 
pursuant to th e provisions of G.S. I15C 115C 325(q)(l), th e 
assistanc e t e am s hall hav e th e burd e n of proof at th e h e aring. A 
principal who has b e en susp e nd e d pursuant to th e provisions of 

(g) Ba se d on r e comm e ndation s from the s tat e accr e ditation G.S. 1 1 5C 1 1 5C 325(q)( 1 ) shall hav e the burden of proof In 



pr e par e a summary' r e port that giv e s an overview of 
th e program or op e ration und e r r e vi e w; a list of the 
program' s str e ngths and e x e mplary featur e s; a list of 
unm e t standard s and a justification for th e complianc e 

d e ci s ion for e ach. Th e LEA may r e spond to 

complianc e d e cision s with which the LEA does not 
concur. 
^ Joint as sess m e nt visit s ar e mad e prior to D e cember 3 1 

of th e accr e ditation y e ar. 
(4) TTi e D e partm e nt r e vi e ws joint ass es sm e nt r e port s and 
pr e pares a s ummary analy s i s of e ach LEA that 
indicates ov e rall complianc e with SBE s tandards. 
(A^ If summarv' data show that th e LEA m ee ts stat e 
accreditation r e quir e m e nts, th e D e partm e nt 
se nd s — th e s ummary — r e port and — all joint 
a s s ess m e nt r e ports to th e s tat e accr e ditation 
committ ee for r e vi e w. 
(6^ If summary' data show that th e LEA will not 
moot state accr e ditation r e quir e m e nts, the 
D e partm e nt will s ch e dul e a formal on s it e vi s it. 
Th e purpo ses of thi s vi s it ar e to di s cuss and 
v e rify joint as sess m e nt r e ports and to begin 

Department assistanc e fer ar e a s ef 

non complianc e by th e LEA. Aft e r th e vi s it is 
compl e t e d, th e D e partm e nt pr e par e s a summary' 
r e port to th e stat e accr e ditation committ ee 
about accreditation status. 



committ ee , th e SBE awards accr e dit e d status to LEAs that: 
(44 ar e in compliance with 75 p e rc e nt of the p e rformance 
standard s and, if th e LEA i s not participating in th e 
p e rformanc e bas e d — accountability — program, — 1% 
p e rc e nt of th e opportunity standards; 
f34 ar e in complianc e with all s tat e s tatut es ; 
(^ ar e complying with th e int e nt of th e basic e ducation 

program; 
(44 s how balanc e d complianc e among th e s e v e ral ar e as of 

in s truction and op e ration; 
(§) hav e no s e rious conditions r e lat e d to saf e ty, sanitation 

or s e curity; and 
(^ have — He — s e rious — impropri e ti e s — m — financial 
manag e m e nt or r e cord k ee ping. 
(h4 If a LEA disagr ee s with the SBE' s accr e ditation d e cision, 
th e chairperson of th e local board of e ducation may s ubmit a 
lett e r of app e al to th e SBE. Bas e d on additional information, th e 
state — accr e ditation — committee — may — mak e — a — revis e d 
r e comm e ndation to the SBE. — Th e SBE mak e s th e final 
accr e ditation decision. — TTi e LEA' s prior accr e ditation statu s 
r e mains in e ff e ct until th e SBE compl e t e s th e app e al proc e ss. 

Authority G.S. U5C-12(9)c: 115C-81;N.C. Constitution. Article 
L\'. Sec. 5. 



SECTION .0300 - SCHOOL-BASED MANAGEMENT 
AND ACCOUNTABILITY PROGRAM 

.0308 DUE PROCESS PROTECTIONS 

(a) At any hearing conducted by a panel of the SBE pursuant 



any hearing pursuant to the provisions of G.S. 1 l5C-325(q)(2) 
or (q)(2a), the assistance team shall have the burden of proof 

(e) Either the employee or the assistance team may within 1 
days of notification of the panel's decision give notice of appeal 
to the full SBE. The appeal shall be on the record with no 
arguments by counsel except in the form of written briefs of no 
more than 25 pages. The SBE shall consider the appeal at its 
next regularly-scheduled meeting that is at least 20 days 
following receipt of notice of the appeal and shall render a 
decision within 30 days unless the SBE determines that good 
cause, as defined by 26 NCAC 03 .0118, exists to extend the 
period or the parties agree to extend the period. The panel which 
sat and decided the case shall not be excluded from the full SBE 
hearing. Appeal from the SBE decision shall be in accordance 
with G.S. I50B. 

(f) If the SBE appoints an interim superintendent, revokes the 
superintendent's license, or dismisses the superintendent 
pursuant to G.S, ll5C-l05.39(c), the superintendent shall not 
have the right to a hearing under this Rule but shall have the 
right to file a contested case petition pursuant to the provisions 
of G.S. S 150B. The SBE shall make written findings to support 
any of these actions taken pursuant to the provisions of G.S. 
115C-l05.39(c). 

(g) If the SBE revokes or refiises to renew a teacher's license 
pursuant to G.S. ll5C-296{d), the procedures set forth in 16 
NCAC 6C .0312 shall apply. 

Authority G.S ll5C-12(9)c4.: I15C-325(q). 



.0309 



SUSPENSION OF POWERS AND DUTIES OF 



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SCHOOL BOARDS 

Before the SBE suspends any of the powers and duties of a 
local board of education pursuant to the provisions of G.S. 
1 1 5C-39(b) and 115C 105.39(d). 115C-105.39(e) . the SBE shall 
provide written notice to the local board of the reasons for which 
it is considering suspending those powers and duties. If the local 
board fails to remedy the reasons presented to it by the SBE 
within 60 days after receiving written notice, the SBE shall enter 
an order that incorporates the reasons for suspending the powers 
and duties, the efforts that the local board has made to remedy 
those reasons, and the period of time during which those powers 
and duties shall be suspended. Within the first 45 days following 
the SBE's notification to the local board, the SBE shall provide 
the local board an opportunity to present a response in an 
attempt to reach agreement. 

Authority G.S. 115C-12(9)c4. 

.0311 GENERAL KNOWLEDGE TEST FOR 
CERTIFIED STAFF 

(a) The general knowledge test administered to certified staff 
in low-performing schools under G.S. 1 15C-105.38A shall be 
the reading and essay subtests of the Florida College-Level 
Academic Skills Test. 

tb} To be required to take the general knowledge test, a 
certified staff member shall have been assigned to the school at 
the time that the end-of-year 
identification of the school 



student tests that led to 
low-performing were 



_ as 

administered, shall have been assigned to that school for at least 
five p ay periods prior to the p ay period during which the end-of- 
year student tests were administered, and shall have been 
assigned to the school for more than 75% of the instructional day 
during the five pay periods of assignment. 

Authority' G.S. 115C-105.38A. 



as a whole or in panels designated by its chair to hear grievances 
between or among charter schools, chartering entities, and local 
boards of education. Either the charter school, its chartering 
entity, or the local board of education of the county in which the 
charter school is located may file a grievance with the charter 
school advisory committee. The grievance shall state the basis of 
the grievance and what steps the parties have taken to resolve the 
grievance. The committee or a panel of the committee shall 
investigate the grievance, provide a hearing for the parties to the 
grievance, and decide the final resolution of the grievance. 

.Authority- G.S U5C-238.29G(b). 

SUBCHAPTER 6H - FEDERAL PROGRAMS 

.0101 DEFINITIONS 

As used in this Subchapter: 

(1) "Free appropriate public education" (FAPE) is 
defined by M CFR 300. 4 . 34 CFR 300.8. 

(2) "Individualized education program" (lEP) is defined 
by 34 CFR 300.340. 

(3) "Least restrictive environment" (LRE) is defined by 
34 CFR 300.550-300.556. 

(4) "Parent" is defined by 3 4 CFR 300.10. 34 CFR 
300.13. 

(5) "Willie M." class members are children under age 18 
who now or will in the future suffer from serious 
emotional, mental or neurological handicaps, which 
handicaps have been accompanied by behavior which 
is characterized as violent or assaultive; and who are 
or will be in the future involuntarily placed in 
institutions or otherwise placed in residential 
programs; and who have not been provided 
appropriate treatment and education programs by the 
state. 



SECTION .0500 - CHARTER SCHOOLS 



Authorit\' G.S 115C-141. 



.0502 CHARTER SCHOOL ADVISORY 

COMMITTEE 

(a) The SBE shall appoint a charter school advisory 
committee of 15 members, who shall represent the following 
categories: 

(1) charter school officials; 

(2) public school employees; 

(3) business and community leaders; 

(4) local boards of education; 

(5) the North Carolina Parents and Teachers Association; 
and 

(6) county commissioners. 

(b) The term of membership shall be two years. Each member 
shall be eligible to serve two terms. The Superintendent of 
Public Instruction shall designate the chair of the charter school 
advisory committee. 

(c) The charter school advisory committee shall advise the 
SBE on policies, procedures, and concerns that relate to the 
operation of charter schools in this State. 

(d) The charter school advisory committee shall also sit either 



.0103 COMPLAINT PROCEDURES FOR FEDERAL 
PROGRAMS 

(a) The Department will receive, review and resolve 
complaints for which no other procedures or remedies are 
available. These complaints involve the allegation that LEAs, 
another subgrantee or the Department has violated a federal 
statute, regulation or interpretive rule. This Rule affects those 
federal education programs listed in 34 CFR Part 76. 

(b) Any person(s) who believes that grounds exist for filing 
a complaint under Paragraph (a) of this Rule may file a written 
complaint with the Department. The complaint must: 

( 1 ) be signed by the person(s) making it; 

(2) show who has violated a specific federal requirement; 

(3) tell how the requirement has been violated; 

(4) state the facts upon which the complaint is based; and 

(5) tell what relief the person is seeking. 

(c) If the Department receives a complaint which is not 
complete or is not in proper form, it will contact the person 
making it and explain how the complaint may be made 
acceptable. 



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PROPOSED RULES 



(d) The Department will send the complaint to appropriate 
staff for review and response. If the complaint involves a 
subgrantee. the Department will send the complaint to that 
subgrantee. 

(e) The Department may, in its discretion, allow the person to 
appear and present evidence. 

(f) The Department will issue a final written resolution of 
each acceptable complaint to each party involved within 60 days 
of receipt, unless exceptional circumstances require an 
extension. 

(g) The resolution includes: 

(1) a summary of the facts involved; 

(2) a statement of the federal requirement involved; 

(3) the Department's findings of fact and a summary of 
the evidence it considered; 

(4) the Department's conclusions regarding each 
allegation and a summary of its reasons for them; and 

(5) the Department's order for any technical assistance, 
negotiation or corrective action that must occur and 
when those actions must be taken, tak e n; and 

{€) notic e to e ach party to their right to app e al th e 

r e solution for r e vi e w by th e U.S. D e partm e nt of 

Education within 30 days. 

(h) If a complaint conc e rns equal privat e s chool participation 

in f e d e ral e ducation program s , th e d e partm e nt will also follow 

th e proc e dur es of P.L. 95 561. 

(+Kh) If a federal education program requires a subgrantee to 
develop and use a complaint procedure, the person complaining 
may use either that or the Department's procedure. If the person 
uses the subgrantee's procedure, the person may appeal that 
decision to the Department within 30 days after receiving it. 

Authority G.S. IISC-IU: 34 C.F.R. 300.660-662. 

.0105 ADMINISTRATION OF SPECIAL 

EDUCATION PROGRAMS 

(a) Implementation of the provisions of this Section which 
relate to providing special education and related services is the 
responsibility of the LEA. All agencies not associated with local 
school administrative units, the Department of Human R es ourc es 
Health and Human Services or the Department of Correction 
must also meet the standards described in this Section if they 
provide educational services to children with special needs. 
LEAs shall ensure that an agency meets these standards before 
they contract for services from such programs. 

(b) When a newly-identified child with special needs has been 
diagnosed or evaluated by personnel under the Department of 
Human R e sourc e s, Health and Human Services, appropriate 
personnel from that department shall contact the LEA of the 
child's residence and inform the LEA in writing of the evaluation 
and results. 

(c) LEAs, including all local school administrative units and 
the Departments of Human R es ourc es Health and Human 
Services and Correction, shall work together to plan and 
implement programs and services for children with special 
needs. 

AuthohtvG.S. 115C-I4!. 



.0106 NON-INSTRUCTIONAL SPECIAL 

EDUCATION SERVICES 

(a) Transportation. 

( 1 ) LEAs shall be responsible for providing or paying for 
the costs of transportation for children with 
disabilities enrolled in the schools or programs und e r 
th e ir jurisdiction. Th e y in their local school svstems 
and shall atee be responsible for providing or paying 
for the costs of transportation to any private 
residential or nonresidential program, pro pram , -pubtie 
or privat e , if the student has been placed in or 
assigned to that private program by the LEA. Sp e cial 
flinds may b e provid e d for this purpo se through th e 
d e partm e nt and s hall b e incorporated in th e g e n e ral 
transportation plan of the LEA. Transportation funds 
for this purpose may be provided through local boards 
of education annual budget transportation allotments 
that are administered by the School Support Division 
of the Department. These funds shall be incorporated 
in the general transportation plan of each local board. 
For preschool children with disabilities, payment of 
these transportation costs must be made from either 
federal or state preschool program funds. 

(2) If a child with disabilities is assigned to or enrolled in 
a any residential or nonresidential program operated 
by or under the jurisdiction of the Departments of 
Human R e sources Health and Human Services or 
Correction, the Department operating the program or 
having the program under its jurisdiction or control 
ov e r th e program shall be responsible for providing or 
paying the costs of transportation. This shall be 
applicable for programs for school age students with 
disabilities as well as programs for preschool children 
with disabilities. The only exception shall be when a 
child is enrolled in a LEA and is counted for funding 
purposes by the LEA, but attends a class or classes at 
a Department of Health and Human Services program. 
In this case, the LEA shall be responsible for 
providing the transportation to the Department of 
Health and Human Services program and return to the 
LEA or home. 

(3 ) The costs of transportation for a child with disabilities 
placed in or assigned to a school or program outside 
the state shall be paid by the LEA placing or assigning 
the child. 

(4) Reimbursement for transportation costs paid for any 
one child may not exceed the Department of 
Transportation allowance per mile unless it is 
demonstrated by the child or his/her parents that this 
limitation will work a hardship or is unreasonable. 
The LEA and the appropriate state agency shall 
approve this justification. 

(b) LEAs shall determine and arrange for the provision of ail 
materials, supplies and equipment essential to the instructional 
programs for children with special needs. 

Authority G.S. 115C-141. 



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PROPOSED RULES 



.0107 SPECIAL EDUCATION ASSESSMENT AND 
PLACEMENT PROCEDURES 

(a) Identification, screening, evaluation and placement. 

(1) LEAs shall be responsible for insuring that all 
children with special needs within their jurisdiction 
are identified, located and evaluated, including 
children in private agencies within their jurisdiction 
ages birth through 2 1 . 

(2) LEAs and private schools receiving placements 
pursuant to G.S. 1I5C-115 shall implement 
procedures for identification, screening, evaluation 
and placement of children with special needs. The 
governing body of each LEA and private school 
receiving placements pursuant to G.S. 115C-115 shall 
adopt these procedures and include the procedures 
described in this Rule. 

(3) LEAs may vary these procedures when sufficient 
evidence exists to indicate that children can be 
identified and placed properly within the intent of the 
procedures. 

(b) Upon referral of a child pursuant to G.S. 115C-1 13(c), the 
parties shall follow the due process safeguards of Rule .00 1 of 
this Subchapter. 

(c) Th e multi di s ciplinary t e am A committee of persons 
including the parent or lEP team shall evaluate or reevaluate 
each child with special needs in accordance with the provisions 
of 34 CFR 300.530 through 300.534. Evaluations of children 
suspected of having a specific learning disability shall be subject 
to the further provisions of 34 CFR 300.540 through 300.543. 

(d) Individualized education program. 

(1) Each LEA shall develop and implement an lEP for 
each child with a disability. The Department of Public 
Instruction shall monitor the effectiveness of these 
programs. 

(2) All lEPs shall be developed in accordance with the 
provisions of 3 4 CFR 300.3 4 2 34 CFR 300.340 
through 300.3 4 9. 300.351. 

(3) The LEA shall develop an lEP for any child with a 
disability who is enrolled in a parochial religiously 
affiliated or other private school, but who receives 
special education or related services from the LEA. 

(4) The LEA shall supply to the parent(s) or guardian 
during a conference or by mail, in language 
understandable to the general public and in the native 
language of the parent or other mode of 
communication used by the parent, imless it is clearly 
not feasible to do so: 

(A) a copy of the lEP if requested; 

(B) a description of the rights of the par e nt(s), 
including th e right to r e vi e w data, to challeng e 
th e data, and to provid e additional data that 
could hav e s om e e ff e ct on th e plac e m e nt, 
program, and se rvic e s of th e child; parent(s); 
and 

(C) information concerning their right to an 
independent educational evaluation, at public 
expense, if they disagree with the evaluation 
obtained bv the LEA and a list of other 



agencies providing free e valuation s ; — and 

evaluations. 
f&) information conc e rning th e right to app e al the 

d e cision and a copy of the app e al s proc e dur e . 
f5) Th e LEA shall pr e par e Group Education Programs 
(GEP s ) for acad e mically gift e d s tud e nts. Th e GEP 
describ e s a diff e r e ntiat e d instructional program for 
stud e nts who shar e similar academic charact e ri s tics 
and program n ee ds. Th e LEA shall individualize the 
program to accommodat e individual students' needs 
and any additional n ee d s of a s tud e nt not alr e ady 
addr es s e d and a d es cription of furth e r n e c e ssary' 
modification s . 
f^5) The LEA shall prepare and implement a written 
program to meet the special educational needs of 
pregnant students. 

(e) The LEA shall complete appropriate in-depth evaluations 
of children with a disability at least ever>' three years in order to 
determine the appropriateness of the current educational status 
of students. Parent approval shall net be required prior to 
r ee valuation. reevaluation if additional assessment(s) is to be 
completed. The parent(s) shall be notified in writing of the 
results of the reevaluation and the recommendations based on 
them, and the notice shall meet the requirements of 3 4 CFR 
300.505. 34 CFR 300.504. If the parent objects, the due process 
procedures set forth in Rule .0010 of this Subchapter shall apply. 

(f) Each LEA shall make available a continuum of programs, 
services and placements for each child with a disability in 
accordance with the provisions of 34 CFR 300.550 through 
300.553. 300.556. 

(g) Every private or nonpublic school which provides special 
education or related services to children with disabilities who 
have been placed in such school by the LEA is subject to the 
provisions of 34 CFR 300.400 through 300. 4 03. 300.402. 

(h) Willie M. Children. 

(1) Location and identification of class members. 

(A) Local school administrative units shall 
nominate to area mental health c e nt e rs 
programs children that are suspected to be 
members of the Willie M. class. 

(B) Local school administrative units shall request 
informed consent from parents to conduct 
additional evaluations if needed. 

(C) Local school administrative units shall notify 
the Department of Public Instruction regarding 
the number of children nominated. 

(D) Local school administrative units shall keep an 
ongoing register of all identified Willie M. 
class members. 

(E) The Department of Public Instruction shall 
assign staff to the state level certification 
committee to assist in the certification of 
members of the Willie M. class. 

(2) Provision of educational services. 

(A) For certified Willie M. class members local 
school administrative units shall: 
(i) provide special education services in 
compliance with an lEP; 



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(ii) use data received through 

evaluations conducted by the area 
mental health c e nt e rs programs and 
other sources in writing the lEP; and 

(iii) provide special education and related 
services to certified class members who 
are located in group homes or special 
facilities. Certified class members may 
receive these special programs in the 
group home or special facility. 

(B) The LEA shall decide the location of the 
program, with advice from the area mental 
health c e nt e r, program. 

(C) Local school administrative units shall notify 
the Department of Public Instruction of the 
special education program being provided, 
including: 

(i) types of services; 
(ii) the duration of services; and 
(iii) any other information the Department 
deems relevant. 

(D) The Department of Public Instruction shall 
provide training to personnel who provide 
educational services to class members. 

(3) Monitoring. The SBE through the Division for 
Exceptional Children shall monitor local school 
administrative units and other facilities which provide 
educational services to class members to determine if 
the program is appropriate to meet the needs of the 
child. This Paragraph (3) is not effective unless funds 
are appropriated for the specific purpose of 
implementing its provisions. 

Authorities. 115C-NI. 

.0108 SURROGATE PARENTS FOR CHILDREN 
WITH SPECIAL NEEDS 

LEAs shall appoint surrogate parents for children with 
disabilities as provided in 31 CFR 300.514. 34 CFR 300.515. 

Authority G.S. 115C-I41. 

.0109 CONFIDENTIALITY: ACCESS TO SPECIAL 
EDUCATION RECORDS 

All matters pertaining to the confidentiality of and access to 
education records are subject to the provisions of 34 CFR 
300.560 through 300.57 1 300.577 and 34 CFR Part 99. 

Authority G.S. II5C-I4I. 

.0110 SPECIAL EDUCATION DUE PROCESS 
PROCEDURES 

(a) The due process procedures set forth in 34 CFR 300.500 
through 300.513 300.517 are adopted herein by reference 
thereto. 

(b) Only review officers who have been trained and approved 
by the SBE may review hearings. 



the Authorit\' G.S USC-Nl. 



TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 

CHAPTER 12 - LICENSING BOARD 
FOR GENERAL CONTRACTORS 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the North Carolina Licensing Board for General 
Contractors intends to amend rule(s) cited as 21 NCAC 12 
. 0504. Notice of Rule-making Proceedings was published in the 
Register on January 4. 1999. 

Proposed Effective Date: .August 1. 2000. 

Instructions on How to Demand a Public Hearing (must be 
requested in writing within 15 days of notice): In order to 
demand a public hearing, a written request for public hearing 
must be submitted to Mark D. Selph at the Board's office. The 
Board's address is PO Box 1 718''. Raleigh, NC 27619. 

Reason for Proposed Action: To delete the term "qualified" 
from the phrase "qualified independent accountant" so that rule 
is consistent with other Board rules. 

Comment Procedures: Written comments may be submitted to 
Mark D. Selph at the Board's office. Tlie Board's address is PO 
Box 17 18-. Raleigh. NC 27619. 

Fiscal Note: 777/5 Rule does not affect the expenditures or 
revenues of state or local government funds. This Rules does 
not ha\-e a substantial economic impact of at least five million 
dollars ($5,000,000) in a 12-month period 

SECTION .0500 - LICENSE 

.0504 INCREASE IN LIMITATION 

(a) General. A person, firm or corporation holding a valid 
license to engage in the practice of general contracting in North 
Carolina may apply for a different limitation by making 
application for such different limitation with the Board on a 
form prescribed and furnished by the Board. 

(b) Request. A request for the required application form may 
be made at the address shown in Rule .0101 of this Chapter. 

(c) Form. TTie application form for a change in limitation 
requires the applicant to set forth his professional qualifications 
and his present and past experience in general contracting. An 
audited financial statement prepared by a certified public 
accountant or by a qualifi e d an independent accountant who is 
engaged in the public practice of accountancy is required with 
the application for change in limitation. 

(d) Eligibility'. An applicant for a new limitation is eligible 
for the requested change if he possesses the qualifications for the 
limitations as set forth in Rule .0204 of this Chapter with the 
exception that such applicant shall not be required to take a 



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PROPOSED RULES 



written examination. 

(e) Filing Deadline. An applicant who wishes to have his 
application considered for a change in limitation must file his 
application no later than the first day of the month preceding any 
regularly scheduled meeting of the Board. At such meeting the 
Board will consider the application. Regular meetings of the 
Board are in January, April, July and October of each year 

(f) Fees. TTie fees for issuance of limited, intermediate, and 
unlimited licenses are as provided by G.S. 87-10. 

(g) Notice of Approval. Within two weeks after the regular 
meeting of the Board in which a timely filed application is 
considered, the Board will notify the applicant of its decision. 
If the application is approved, a certification of license in the 
new limitation will be issued by the Board and the applicant, as 
of the time of notice of the approval, may conduct himself or 
itself in accordance with the rights available under the limitation 
granted. 

Authohtv G.S. 87-1: 87-10. 



13:18 NORTH CAROLINA REGISTER March 15, 1999 1525 



TEMPORAR Y R ULES 



The Codifier of Rules has entered the following temporary rulefs) in the North Carolina Administrative Code. Pursuant to G.S. 
I50B-2I. 1(e), publication of a temporary rule in the North Carolina Register serves as a notice of rule-making proceedings 
unless this notice has been previously published by the agency. 



TITLE 10 - DEPARTMENT OF HEALTH 
AND HUMAN SERVICES 

Rule-making Agency: DHHS - Division of Medical Assistance 

Rule Citation: 10 NCAC SOB. 0102. .0313 

Effective Date: February 23, 1999 

Findings Reviewed and Approved by: Beecher R. Gray 

Authority for the rule-making: G.S. 108A-25(b): 108A-54; 
108A-61: 42 C.F.R. 435.135: 42 C.F.R. 435.210: 42 CFR. 
435.222: 42 CFR. 435.230: 42 CFR. 435.301: 42 CFR. 
435.308: 42 CFR. 435.322: 42 CFR. 435.330: 42 CFR. 
435.731: 42 CFR. 435.732: 42 CFR. 435.733: 42 CFR. 
435.811: 42 CFR. 435.812: 42 CFR. 435.831: 42 CFR. 
435.832: 42 CFR. 435.1007: 45 CFR. 233.20: 42 U.S.C 
1383c(b): 42 U.S.C. 1383c(d): 42 U.S.C. I396(a)(10)(A)fii): 42 
U.S.C. 1396a(a)(10)(C): P.L 99-272: Section 12202: SL 1983, 
c. 1034, s. 62.2: SL 1987, c. 738, s. 69 and 70: St. 1989, c. 
752. s. 1 33: Alexander v. Flaherty 

Reason for Proposed Action: 

10 NCAC SOB .0102 - Designates groups of individuals below 

the poverty level who shall be eligible for Medicaid. 

10 NCAC SOB .0313 - Designates the income level for 

categorically needy. 

Comment Procedures: Written comments concerning this 
rule-making action must be submitted to Portia W. Rochelle. 
Rule-making Coordinator Division of Medical Assistance, 1985 
Umstead Drive. Raleigh, NC 27603. 

CHAPTER 50 - MEDICAL ASSISTANCE 

SUBCHAPTER SOB - ELIGIBILITY 
DETERMINATION 

SECTION .0100 - COVERAGE GROUPS 

.0102 OPTIONAL 

The following optional groups of individuals described by 42 
U.S.C. 1396a(a)(10)(A)(ii) and 42 U.S.C. 1396a(a)(10)(C) shall 
be eligible for Medicaid; 
(1) Children: 

(a) Children under age one whose family income 
is more than the amount established under Item 
(14), Rule .0101 of this Section and not more 
than a percent of the federal poverty level 
established by the General Assembly; 

(b) Children under age 2 1 who meet the eligibility 
requirements of this Subchapter; 



(c) Qualified children under age 19 as described in 
Item (4), Rule .0101 of this Section, who were 
bom on or before September 30, 1983, and 
whose income is not more than 1 00% of the 
federal poverty level; 

(d) Adopted children under age 18 with special 
needs, as described at 42 U.S.C. 
1396a(a)(10)(A)(ii)(VllI). 

(2) Individuals receiving optional state supplemental 
payment. 

(3) Caretaker relatives of eligible dependent children. 

(4) Pregnant women: 

(a) Whose countable income is more than the 
amount established under Item (13), Rule 
.0101 of this Section and not more than a 
percent of the federal poverty level established 
by the General Assembly, or 

(b) Who, if their countable income exceeds the 
percent of the federal poverty level, established 
in Sub-item (4)(a) of this Rule, meet the 
eligibility criteria for medically needy set forth 
in this Subchapter. 

(5) Aged, blind and disabled individuals whose income is 
at or below 1 00% of the Federal Poverty Level, 
adjusted each April L, and who meet the incom e and 
resource requirements of SSI, but who do not receive 
cash assistance. 

History Note: Filed as a Temporary Amendment Eff. October 

1, 1994. for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner: 

Filed as a Temporary: Amendment Eff. September 12, 1994, for 

a period of 180 days or until the permanent rule becomes 

effective, whichever is sooner: 

Authority- G.S 108A-54: 42 CFR. 435.210: 42 CFR 435.222: 

42 C.F.R. 435.230: 42 CFR. 435.301: 42 CFR. 435.308: 42 

CFR. 435.322: 42 CFR. 435.330: 42 U.S.C. 

1396fa)(10)(A)(ii): 42 U.S.C. 1396a(a)(10)(C): S.L 1983. c. 

1034, s. 62.2: SL. 1987, c. 738, s. 69 and 70: SL 1989, c. 752. 

s. 133: 

Eff. September 1, 1984: 

Amended Eff. January' 1, 1995: February 1, 1992; July 1, 1991: 

August I, 1990: 

Temporary Amendment Eff. February 23, 1999. 

SECTION .0300 - CONDITIONS FOR ELIGIBILITY 

.0313 INCOME 

(a) For family and children's cases, income from the 
following sources shall be counted in the calculation of financial 
eligibility: 

(1) Unearned. 
(A) RSDI, 



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March 15, 1999 



13:18 



TEMPORARY RULES 



(2) 



Veteran's Administration. 
Railroad Retirement, 
Pensions or retirement benefits, 
Workmen's Compensation, 
Unemployment Compensation, 
Support Payments, 
Contributions, 

Dividends or interest from stoclcs, bonds, and 
other investments. 
Trust fund income. 

Private disability or employment compensation. 
That portion of educational loans, grants, and 
scholarships for maintenance. 
Work release. 
Lump sum payments. 
Military allotments. 
Brown Lung Benefits, 
Black Lung Benefits, 
Trade Adjustment benefits, 
SSI when the client is in long term care. 
VA Aid and Attendance when the client is in 
long term care, 

Foster Care Board payments in excess of state 
maximum rates for M-AF clients who serve as 
foster parents. 

Income allocated from an institutionalized 
spouse to the client who is the community' 
spouse as stated in 42 U.S.C. 1396r-5(d). 
Income allowed from an institutionalized 
spouse to the client who is a dependent family 
member as stated in 42 U.S.C. 1396r-5(d). 
Sheltered Workshop Income. 
Loans if repayment of a loan and not counted 
in reserve. 

Income deemed to Family and Children's 
clients. 
Earned Income. 



(B) 
(C) 
(D) 
(E) 
(F) 
(G) 
(H) 
(I) 

(J) 
(K) 
(L) 

(M) 
(N) 
(O) 
(P) 

(0) 
(R) 
(S) 
(T) 

(U) 



(V) 



(W) 



(X) 
(Y) 

(Z) 



(1) 

(2) 
(3) 

(4) 



(A) 
(B) 
(C) 

(D) 
(E) 
(F) 

(G) 



(H) 



Income from wages, salaries, and commissions. 
Farm Income, 

Small business income including 
self-employment. 
Rental income. 

Income from roomers and boarders. 

Earned income of a child client who is a 

part-time student and a full-time employee. 

Supplemental payments in excess of state 

maximum rates for Foster Care Board 

payments paid by the county to Family and 

Children's clients who serve as foster parents. 

VA Aid and Attendance paid to a budget unit 

member who provides the aid and attendance. 

(3) Additional sources of income not listed in 

Subparagraphs (a)(1) or (2) of this Rule will be 

considered available unless specifically excluded by 

Paragraph (b) of this Rule, or by regulation or statute. 

(b) For family and children's cases, income from the 

following sources shall not be counted in the calculation of 

financial eligibility: 



(5) 
(6) 



(7) 
(8) 

(9) 



(10) 

(11) 
(12) 



(13) 



(14) 

(15) 
(16) 
(17) 

(18) 



Earned income of a child who is a part-time student 

but is not a full-time employee; 

Earned income of a child who is a full-time student; 

Incentive payments and training allowances made to 

WIN training participants; 

Payments for supportive services or reimbursement of 

out-of-pocket expenses made to volunteers serving as 

VISTA volunteers, foster grandparents, senior health 

aides, senior companions. Service Corps of Retired 

Executives. Active Corps of Executives, Retired 

Senior Volunteer Programs, Action Cooperative 

Volunteer Program, University Year for Action 

Program, and other programs under Titles 1, II, and III 

ofPublicLaw93-113; 

Foster Care Board payments equal to or below the 

state maximum rates for Family and Children's clients 

who serve as foster parents; 

Income that is unpredictable, i.e., unplanned and 

arising only from time to time. Examples include 

occasional yard work and sporadic babysitting; 

Relocation payments; 

Value of the coupon allotment under the Food Stamp 

Program; 

Food (vegetables, dain,' products, and meat) grown by 

or given to a member of the household. The amount 

received from the sale of home grown produce is 

earned income; 

Benefits received from the Nufrition Program for the 

Elderly: 

Food Assistance under the Child Nutrition Act and 

National School Lunch Act; 

Assistance provided in cash or in kind under any 

governmental, civic, or charitable organization whose 

purpose is to provide social services or vocational 

rehabilitation. This includes VR. incentive payments 

for training, education and allowance for dependents, 

grants for tuition, chore services under Title XX of 

the Social Security Act, VA aid and attendance or aid 

to the home bound if the individual is in a private 

living arrangement; 

Loans or grants such as the GI Bill, civic, honorary 

and fraternal club scholarships, loans, or scholarships 

granted from private donations to the college, etc., 

except for any portion used or designated for 

maintenance; 

Loans, grants, or scholarships to undergraduates for 

educational purposes made or insured under any 

program administered by the U.S. Department of 

Education: 

Benefits received under Title VII of the Older 

Americans Act of 1965; 

Payments received under the Experimental Housing 

Allowance Program (EHAP); 

In-kind shelter and utility contributions paid directly 

to the supplier. For Family and Children's cases, 

shelter, utilities, or household furnishings made 

available to the client at no cost; 

Food/clothing contributions in Family and Children's 



13:18 



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March 15, 1999 



1527 



TEMPORAR Y R ULES 



cases (except for food allowance for persons 
temporarily absent in medical facilities up to 12 
months); 

(19) Income of a child under 2 1 in the budget unit who is 
participating in JTPA and is receiving as a child; 

(20) Housing Improvement Grants approved by the N.C. 
Commission of Indian Affairs or funds distributed per 
capital or held in trust for Indian tribe members under 
P.L. 92-254. P.L. 93-134 or P.L. 94-540; 

(2 1 ) Payments to Indian tribe members as permitted under 
P.L. 94-114; 

(22) Payments made by Medicare to a home renal dialysis 
patient as medical benefits; 

(23) SSI except for individuals in long term care; 

(24) HUD Section 8 benefits when paid directly to the 
supplier or jointly to the supplier and client; 

(25) Benefits received by a client who is a representative 
payee for another individual who is incompetent or 
incapable of handling his affairs. Such benefits must 
be accounted for separate from the payee's own 
income and resources; 

(26) Special one time payments such as energy, 
weatherization assistance, or disaster assistance that 
is not designated as medical; 

(27) The value of the U.S. Department of Agriculture 
donated foods (surplus commodities); 

(28) Payments under the Alaska Native Claims Settlement 
Act, Public Law 92-203; 

(29) Any payment received under Title II of the Uniform 
Relocation Assistance and Real Property Acquisition 
Policies Act of 1970; 

(30) HUD Community Development Block Grant funds 
received to finance the renovation of a privately 
owned residence; 

(3 1 ) Reimbursement for transportation expenses incurred 
as a result of participation in the Community Work 
Experience Program or for use of clienfs own vehicle 
to obtain medical care or treatment; 

(32) Adoption assistance; 

(33) Incentive payments made to a client participating in a 
vocational rehabilitation program; 

(34) Title XX funds received to pay for services rendered 
by another individual or agency; 

(35) Any amount received as a refund of taxes paid; 

(36) The first fifty-dollars ($50.00) of each child 
support/spousal obligation or military allotment paid 
monthly to the budget unit in a private living 
arrangement. 

(c) For aged, blind, and disabled cases, income counted in the 
determination of financial eligibility is based on standards and 
methodologies in Title XVI of the Social Security Act. 

(d) For aged, blind, and disabled cases, income from the 
following sources shall not be coimted: 

( 1 ) Any Cost of Living Allowance (COLA) increase or 
receipt of RSDI benefit which resulted in the loss of 
SSI for those individuals described in Item (17) of 
Rule .0101 of this Subchapter. 

(2) Earnings for those individuals who have a plan for 



achieving self-support (PASS) that is approved by the 

Social Security Administration, 
(e) Income levels for purposes of establishing eligibility are 
those amounts approved by the N.C. General Assembly and 
stated in the Appropriations Act for categorically needy and 
medically needy classifications, except for the following: 

( 1 ) The income level shall be reduced by one-third when 
an aged, blind or disabled individual lives in the 
household of another person and does not pay his 
proportionate share of household expenses. The one- 
third reduction shall not apply to children under 
nineteen years of age who live in the home of their 
parents; 

(2) An individual living in a long term care facility or 
other medical institution shall be allowed as income 
level a deduction for personal needs described under 
Rule .0314 (Personal Needs Allowance) of this 
Subchapter; 

(3) The categorically needy income level for an aged, 
blind, and disabled individual or couple is th e SSI 
individual or coupl e amount. — Thi s i s th e curr e nt 
F e d e ral B e n e fit Rat e (FBR). 100% of the Federal 
Poverty Level; 

(4) The income level to be applied for Qualified Medicare 
Beneficiaries described in 42 U.S.C. I396d and 
individuals described in 42 U.S.C. 1396e is based on 
the income level for one; or two for a married couple 
who live together and both receive Medicare. 

History' Note: Filed as a Temporary Rule Effective July 1. 

1 98 7. for a period of 120 days to expire on October 31, 1987; 

Authority G.S. I08A-25(b): 108A-61: 42 C.F.R. 435.135: 42 

C.F.R. 435.731: 42 C.FR. 435.732; 42 C.FR 435.733: 42 

C.FR. 435.811; 42 C.FR. 435.812; 42 C.FR. 435.831; 42 

C.FR. 435.832; 42 C.FR. 435.1007; 45 C.FR. 233.20: 42 

U.S.C. 1383c(b): 42 U.S.C. 1383c(d): P.L 99-272: Section 

12202: Alexander v. Flaherty Consent Order filed February 14, 

1992; 

Eff. September 1, 1984: 

Amended Eff. January 1, 1996: January 1. 1995: September 1, 

1994: September 1. 1993: 

Temporary- Amendment Eff. Februan- 23, 1999. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

Rule-making Agency: Department of Environment and Natural 
Resources 

Rule Citation: 15A NCAC IJ .0101. .0102. .0202, .0303, 
.0402. .0502. .0504, .0601, .0604, .0701, .0703, .0803, .0903. 
.0904: IL.OIOI, .0102, .0203. .0303, .0501, .0503, .0601, .0604 
.0701, .0801, .0902, .1003. .1004 

Effective Date: March 31, 1999 



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13:18 



TEMPORAR Y RULES 



Findings Reviewed by Beecher R. Gray: Approved 

Authority for tlie rule-making: 

ISA NCAC IJ.OIOI, .0102, .0202, .0303, .0402, .0502, .0504, 

.0601, .0604, .0701, .0703, .0803, .0903, .0904. G.S. 159G-3; 

159G-10: 159G-15 

15A NCAC IL .0101, .0102, .0203, .0303, .0501, .0503, .0601, 

.0604, .0701, .0801, .0902, .1003,. 1004. S.L.I998. c. J 32. s. 10 

Reason for Proposed Action: Senate Bill 1354 has authorized 
the issuance of State GO. bonds. S3 30.000.000 of which will 
provide grant funding for the state 's Clean Water Revolving 
Loan and Grant Program. The legislation requires a re- 
working of the program's priority criteria to emphasize seven 
specific considerations. 

Comment Procedures: Written comments may be submitted in 
writing to Bobby Blowe. Division of Water Quality. 
Construction Grants and Loans Section. DENR. RO. Box 
28579. Raleigh. NC 27626-0579. (919) 715-6212. 

CHAPTER 1 - DEPARTMENTAL RULES 

SUBCHAPTER IJ - STATE CLEAN 

WATER REVOLVING 

LOAN AND GRANT PROGRAM 

SECTION .0100 - GENERAL PROVISIONS 

.0101 PURPOSE 

Loans and grants for wastewater treatment systems, 
wastewater collection systems and water supply systems from 
the various accounts in the North Carolina Clean Water 
Revolving Loan and Grant Fund established by G.S. 159G, 
except the Water Pollution Control Revolving Fund established 
by G.S. 150G 5(C). 159G-5(C) and the" Drinking Water 
Treatment Revolving Loan Fund established by G.S. 159G-5(d). 
shall be made in accordance with this Subchapter. 

History- Note: Filed as a Temporary' Rule Eff. February 2. 

1 988 for a period of 1 80 days to expire on August I. 1988: 

ARRC Objection March 17. 1988: 

Authority G.S 159G-15: 

Eff. August 1. 1988: 

Temporary- Amendment Eff. March 31. 1999. 



(4) 
(5) 
(6) 

(7) 

18} 

Wlil 
WOO) 



fWKll) 



(H^tiU 



f^UiU 



.0102 DEFINITIONS 

In addition to the definitions in G.S. 159G-3, the following 
definitions will apply to this Subchapter: 

(1) "Act" means the North Carolina Clean Water 
Revolving Loan and Grant Act of 1987, G.S. 159G. (4^14) 

(2) "Award" means the offer by the receiving agency to 

enter into a loan or grant commitment for a specified <444 (15) 
amount. 

(3) "Award of contract" means the award by the loan or fl- ^16) 
grant recipient to a contractor of a contract to 
construct the project as bid. <4 ^17) 



"Bid" means the amount of money for which a 
contractor offers to construct the project. 
"Contingency costs" means unforeseen costs or 
situations not included in the estimate of project costs. 
"Commitment" means a binding agreement to pay 
loan or grant funds in a lump sum or in installments to 
an eligible applicant at some future time. 
"Date of completion" means the date on which the 
project has been completed, as determined by the 
receiving agency. 

"Division of Environmental Health" means the 
Division of Environmental Health of the North 
Carolina Department of Environment and Natural 
Resources. 

"Division of Environmental Management" means the 
Division of Environm e ntal — Manag e ment Water 
Quality of the North Carolina Department of 
Environm e nt, — H e alth, Environment and Natural 
Resources. 

"Effective date of receipt" means September 30 for 
applications postmarked or hand delivered to the 
principal offices of the receiving agency in Raleigh, 
North Carolina between April 1 and September 30, 
and means March 3 1 for applications postmarked or 
hand delivered to the principal offices of the receiving 
agency in Raleigh, North Carolina between October 1 
and March 31; except that for applications to the 
Emergency Wastewater or Water Supply Revolving 
Loan Account it means the date designated by the 
receiving agency for each priority review period 
established under Rule .0801(b) of this Subchapter. 
"Fiscal year" means the state fiscal year, beginning on 
July 1 of a calendar year and ending on June 30 of the 
following calendar year. In referring to a specific 
fiscal year, the year named is the calendar year in 
which the fiscal year ends. For example, "Fiscal Year 
1988" refers to the fiscal year beginning July 1, 1987 
and ending June 30, 1988. 

"Inspection" means inspection or inspections of a 
project to determine percentage completion of the 
project and compliance with applicable federal, state 
and local laws or rules. 

"Orders" means any restrictive measure, related to the 
operation of its wastewater treatment facilities, issued 
to an applicant for a loan or grant from the wastewater 
accounts under this Subchapter. Such measures may 
be included in. but are not restricted to. Special 
Orders, Special Orders by Consent, Judicial Orders, 
or issued or proposed permits, permit modifications or 
certificates. 

"Project" means the works described in the 
application for a loan or grant under this Subchapter 
"Loan" means "revolving loan" as defined in G.S. 
1590-3(15). 

"Priority period" means priority review period as 
established in Section .0800 of this Subchapter 
"Real property" means land and structures affixed to 
the land having the nature of real property or interests 



13:18 



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1529 



TEMPORAR Y RULES 



in land including easements or other rights-of-way 
purchased or acquired for water supply and 
wastewater facilities and works to be constructed as a 
part of the project for which a loan or grant is made 
under this Subchapter. 
(+^Q8j "Regional water supply system" means: m e ans a 
public wat e r supply s y s t e m of a municipality. count>', 
sanitary district, or oth e r political subdivi s ion of the 
stat e or combination th e r e of which provid e s, i s 
int e nd e d to provid e , or i s capabl e of providing an 
ad e quat e and saf e supply of wat e r to a substantial 
portion of the population within a county, or to a 
s ubstantial wat e r servic e ar e a in a r e gion compos e d of 
all or parts of two or more counti e s, or to a 
m e tropolitan ar e a in two or mor e counti es . 

(a) A public water system that serves two local 
units of government, or 

(b) A public water system that demonstrates each 
of the following: 

£i} A specific plan to provide drinking 

water throughout the territory of a local 

unit of government, except that a 

municipality shall also demonstrate a 

specific plan to provide drinking water 

outside its extraterritorial jurisdiction; 

(ii) Shares water supply facility resources 

with another public water system or 

eliminate an acute/imminent, immediate. 

chronic, or potential health hazard as 

described in Rule .0701(a) through (d) 

of this Subchapter in an area c ontaining 

at least 1 5 residential units which is not 

served by a public water system; and 

(iii) A interlocal agreement or joint 

resolution to be a part of an 

interconnected regional water system 

within 10 years. 

(4&4 (19) "R e gional wast e wat e r manag e ment authority" m e ans 

a unit of governm e nt which has juri s diction for 

providing the wast e wat e r tr e atm e nt works for thr ee or 

mor e units of gov e rnm e nt, or which ha s r es ponsibility 

within a facility planning ar e a to carry out th e 

op e ration and maint e nanc e of all publicly - own e d 

wa s t e wat e r tr e atm e nt works. "Regional wastewater 

system" means a public wastewater collection or 

treatment system of a municipality, county, sanitary 

district, or other political subdivision of the State or 

combination thereof that serves two or more units of 

government. 

f4 ^20) "Water Reclamation" means the production of a high 

level treated effluent as a reusable, non-potable water 

source. 

Q:Q M2\) "Water Reuse" means the actual use or application of 

treated wastewater in or on areas which require water 

but do not require potable water quality. 

History' Note: Filed as a Temporary Amendment Eff. March 
8, 1994 for a period of 180 days or until the permanent rule 



becomes effective, whichever is sooner: 

Filed as a Temporary Rule Eff. February 2, 1988 for a period of 

180 days to expire on August 1, 1988: 

ARRC Objection March 17. 1988: 

Authority G.S. 159G-3: 159G-15: 

Eff August 1. 1988: 

Amended Eff July 1. 1994: July 1, 1992: 

Temporan' Amendment Eff. March 31. 1999. 

SECTION .0200 - ELIGIBILITY 
REQUIREMENTS 

.0202 GRANTS FROM THE HIGH-UNIT 
COST ACCOUNTS 

(a) Eligibility of an application for a grant from the High-Unit 
Cost Wastewater Account or the High-Unit Cost Water Supply 
Account, and the amount eligible for such a grant, will be 
determined by the receiving agency in accordance with G.S. 
1 59G-6(b)(2) or 159G-6(c)(2), subject to the limitations in G.S. 
159G-6(a)(2). 

(b) For the purposes of Rule .0202(a) of this Subchapter, 
median household income in the county local government unit 
in which the project is located will be as determined jointly each 
year by the U.S. Bureau of Census and the U.S. Department of 
Housing and Urban Development. 

(c) Grants from the High-Unit Cost Wastewater and Water 
Supply Accounts will be made only to approved projects that 
receive a commitment for the balance of project costs from any 
other source, including loans under this Subchapter and other 
loans from governmental or private sources. 

(d) Grants from the High-Unit Cost Water Supply accounts 
will be made only to a pplicants who have submitted a water 
supply facility plan to the Department of Environment and 
Natural Resources in accordance with G.S. 143-355(1). 

History Note: Filed as a Temporary Rule Eff. February 2, 

1 988 for a period of 1 80 days to expire on August 1. 1988: 

ARRC Objection March 77,' 1988: 

Authority' G.S. 159G-6(a)(2): 159G-6(b)(2): 159G-6(c)(2): 

159G-15: 

Eff August 1. 1988: 

Temporary' Amendment Eff. March 31. 1999. 

SECTION .0300 - APPLICATIONS 

.0303 FILING OF REQUIRED 

SUPPLEMENTAL INFORMATION 

(a) Every application shall be accompanied by an 
environmental assessment document as required by G.S. 
159G-8(b), by the date the receiving agency sets the priority 
rating for a priority review period. 

(b) Any application that has not received approval by the 
receiving agency of the preliminary engineering report for the 
proposed project by the date the receiving agency sets the 
priority rating for a priority review period shall not be included 
in the priority rating for that priority review period. 

(c) Any applicant for a water supply project not 
demonstrating approval of plans and specifications within four 



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13:18 



TEMPORARY RULES 



months from the end of the priority rating period shall be 
transferred to the next priority rating period for consideration 
unless this review is the second review in which case a new 
application shall be required for further consideration. 

(d) Any application for water supply projects must be 
accompanied by a business plan, water system management plan, 
or other information that documents that the applicant has the 
technical, managerial, and financial capacity to ensure 
compliance with the North Carolina Drinking Water Act. G.S. 
130A-311 et. seq . 

feKe) Any application that is not accompanied by an adopted 
resolution as required by G.S. 159G-9(3) stating that the unit of 
government has complied or will substantially comply with all 
applicable federal, state and local laws or rules shall not be 
included in the priority rating for that priority review period. 
Such resolution shall be certified or attested to as a true and 
correct cop>' as adopted. 

fd^f) If a public hearing is held on an application, the 
application shall not be included in the priority rating unless the 
hearing process is concluded by the date the receiving agency 
sets the priority rating for the priority review period. 

fe Hg) A certification shall be submitted by the local 
government unit stating that it will be in compliance with 
verifiable Minority Business Enterprise goals as stated in G.S. 
143-128. 

History Note: Filed as a Temporary Amendment Eff. March 

8. 1994 for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner: 

Filed as a Temporary Rule Eff. February 2. 1 988 for a period of 

180 days to expire on August 1. 1988: 

ARRC Objection March 17. 1988: 

Authority- G.S. 159G-8: 159G-9: 159G-10(q): 159G-15: 

Eff. August 1, 1988: 

Amended Eff. July 1 . 1994: 

Temporar\- Amendment Eff. March 31. J 999. 

SECTION .0400 - CRITERIA FOR 
EVALUATION OF ELIGIBLE APPLICATIONS 

.0402 CRITERIA FOR PLANNING 

AND WATER CONSERVATION 

Maximum value- 70 80 points: 
( 1 ) Applicant may receive a maximum of 1 5 bonus points 
for meeting the following criteria as applicable: 

(a) Applicant demonstrates it has a continuing l/I 
program in its wastewater sewer maintenance 
program. (Wastewater 

Projects Only) 5 points 

(b) Applicant demonstrates it has a continuing 
water loss program in its water supply system 
program. (Water Supply Projects 

Only) 5 points 

(c) Applicant demonstrates it has a continuing 
program of water conservation education and 
information. 5 points 

(d) Applicant demonstrates it has established a 



(2) 



(b) 



(c) 



LU 



14J 



water conservation incentive rate structure; 
created incentives for new or replacement 
installation of low flow faucets, shower heads, 
and toilets; or has a water reclamation or reuse 
system. 5 points 

Applicant ma> atee receive a maximum of +0 25 
bonus points for meeting the following criteria: 
(a) Applicant demonstrates that it has adopted a 
comprehensive land-use plan that meets the 
requirements of G.S. 155H. Article 18 or G.S. 
160A. Article 19. or applicant is a local 
government unit that is not authorized to adopt 
a comprehensive land-use plan but that is 
located in whole or in part in another local 
government unit that has adopted a 
comprehensive land-use plan, and that the 
proposed project is consistent 
with the plan. 3 7 points 

Applicant demonstrates that the comprehensive 
land-use plan exceeds the minimum state 
standards for the protection of w ater 
resources. 3 8 points 

Applicant demonstrates that actions have been 
taken toward implementation of the 
comprehensive land-use plan. These actions 
may include the adoption of a zoning ordinance 
or any other measure that significantly 
contributes to the implementation of the 
comprehensive land-use plan. 6 10 points 
Applicant ma\ receive a maximum of 20 bonus points 
for the following criteria: 

(a) Applicant has developed a capital improvement 
plan as defined in Session Laws 1998 G.S. 
132. 15 points 

(b) Proposed project is consistent with the water 
supply watershed protection requirements of 
G.S. 143-214.5. 5 points 

Applicant may receive a maximum of 20 bonus points 

for the following criteria: 

(a) Applicant demonstrates voluntary water supply 

watershed protection activities in excess of the 

minimum requirements of 

G.S. 143-214.5. or 1 5 points 

Applicant demonstrates jt has developed a 

voluntar\ wellhead protection 

program, or 15 points 

Applicant demonstrates jt has both 



tbj 



tcj 



Subparagraphs ( 1 ) and (2) of this 
Paragraph. 20 points 



History Note: Filed as a Temporary Amendment Eff. March 

8. 1994 for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner: 

Filed as a Temporary Rule Eff. February 2, 1 988 for a period of 

180 days to expire on August 1. 1988: 

ARRC Objection March 11 1988: 

Authorit\- G.S. 159G-10: 159G-15: 

Eff. .August 1. 1988: 



13:18 



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1531 



TEMPORAR Y R ULES 



Amended Eff. July 1 . 1994: 

Temporary Amendment Eff. October 23. 1997: 

Amended Eff. August 1 . 1998; 

Temporan' Amendment Eff. March 31, 1999. 

SECTION .0500 - PRIORITY CRITERIA 

FOR WASTEWATER 

TREATMENT WORKS PROJECTS 

.0502 APPLICABLE CONDITIONS 

Maximum Value — ^ 65 Points: 

The value of this Rule will be the sum of the points assigned 
under Items (1). (2). (3) and (4) of this Rule. 

( 1 ) Proposed project will comply with established water 
quality standards and priority points will be assigned 
on the basis of the classification assigned to the 
receiving waters as follows; 

(a) Class "SA" (Shellfish Waters), Class "WS-I" 
or "WS-Ii" (Water Supply Source), Class 
"ORW" (Outstanding Resource Waters), or 
"HQW" (High Quality Waters). iQ 20 points 

(b) Class "WS-lll", "WS-IV", or "WS-V" (Water 
Supply Source) 2% 15 points 

(c) Class "B" or "SB" (Bathing 

Waters) 3S JO points 

(d) Class "C" or "SC" (Fishing) 34 5 points 

(2) Construction of proposed project has been initiated or 
mu s t b e initiat e d within 12 months to comply with an 
ord e r issu e d or with a complianc e sch e dul e approv e d 
by th e Environm e ntal Manag e m e nt Commis s ion, or 
by Judicial Ord e r. Proposed projects will provide for 
a regional wastewater collection or 

treatment system. W J_5 points 

(3^ Propos e d — proj e ct s — wiW — provid e — fer — a — r e gional 

wast e wat e r tr e atm e nt facility. 10 points 

f44(3) Proposed project will provide wastewater treatment 

processes for the removal of nutrients, nutri e nts or 

oth e r mat e rials not normal 1> r e moved by conv e ntional 

tr e atm e nt proc e ss e s. 5 points 

(4) Proposed project will result in a reduction of the 

overall volume of effluent discharged to the state's 

waters by using alternative methods of wastewater 

treatment and disposal. 25 points 

History^ Note: Filed as a Temporary Amendment Eff. March 

8. 1994 for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner: 

Filed as a Temporary Rule Eff. February 2, 1988 for a period of 

180 days to expire on August 1, 1988: 

ARRC Objection March 1 7, 1988: 

Authority G.S. 159G-10: 159G-15: 

Eff. August 1, 1988: 

Amended Eff. July 1, 1994: 

Temporary Amendment Eff. March 31, 1999. 

.0504 FISCAL RESPONSIBILITY OF THE 
APPLICANT 

Maximum Value~W 25 points: 



The value of this Rule will be the sum of the points assigned 
to either Item ( 1 ) or (2) of this Rule plus the value assigned to 
Items (3) and (4) of this Rule: 

(1) Applicant has adopted an acceptable sewer use 
ordinance which will be placed in effect on or before 
the completion date of the proposed project and has 
established an equitable schedule of fees and charges 
providing that each category of users shall pay 
substantially its proportional part of the total cost of 
the operation and which will provide sufficient 
revenues for the adequate operation, maintenance and 
administration and for reasonable expansion of the 
project. 6 points 

(2) Applicant is in the process of adopting an acceptable 
sewer use ordinance which will be adopted and placed 
in effect on or before the completion date of the 
proposed project and has established an equitable 
schedule of fees and charges providing that each 
category of users shall pay substantially its 
proportional part of the total cost of the operation and 
which will provide sufficient revenues for the 
adequate operation, maintenance and administration 
and for reasonable expansion of the 

project. 2 points 

(3) Applicant has established by resolution of its 
governing body a capital reserve fund into which all 
surplus revenues fi^om such charges and fees will be 
placed for the purposes specified in G.S. 1590-9(4). 
(Copy of the resolution must be submitted with 
application.) 3 4 points 

(4) The applicant has followed proper accounting and 
fiscal reporting procedures as evidenced by the 
applicant's most recent report of audit and the 
applicant is in s ubstantial compliance with provisions 
of the general fiscal control laws of 

the state. 3 fS points 

The Environmental Management Commission may seek the 
comments of the Secretary of the Local Government 
Commission in determining the values to be assigned to Items 
(3) and (4) of this Rule. 

Histon,' Note: Filed as a Temporary Rule Eff. February 2, 

1 988 for a period of 1 80 days to expire onAugust 1, 1988: 

ARRC Objection March 1 7, 1988: 

Authority G.S. 159G-10: 159G-15: 

Eff. August 1, 1988: 

Temporary Amendment Eff. March 31, 1999. 

SECTION .0600 - PRIORITY CRITERIA FOR 
WASTEWATER COLLECTION SYSTEM PROJECTS 

.0601 PUBLIC NEED 

Select One; Maximum Value--25 points; 

(1) Project is intended to improve or expand an existing 

system for which adequate wastewater treatment 

facilities will be provided by: 

(a) a regional wastewater manag e ment authority, 

system. 25 points 



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13:18 



TEMPO R.4 RY RULES 



(b) the applicant. 20 points 

(2) Project is intended to provide a basic system for a unit 
of government which is not presently served by an 
approved system and adequate wastewater treatment 
will be provided by: 

(a) a regional wastewater manag e m e nt authority, 
system. 20 points 

(b) the applicant. 15 points 

History Note: Filed as a Temporary Rule Eff. February 2. 

1988 for a period of 180 days to expire on August 1. 1988; 

ARRC Objection March 1 7, 1988: 

Authority G.S. 159G-10: 159G-15; 

Eff. August 1. 1988: 

Amended Eff. September 1. 1994: 

Temporan,- .Amendment Eff. March 31. 1999. 

.0604 FISCAL RESPONSIBILITY OF 
THE APPLICANT 

Maximum Value— 4-0 25 points: 
The value of this Rule will be the sum of the points assigned to 
either Item ( 1 ) or (2) plus the value assigned to Items (3) and (4) 
of this Rule: 

(1) Applicant has adopted an acceptable sewer use 
ordinance which will be placed in effect on or before 
the completion date of the proposed project and has 
established an equitable schedule of fees and charges, 
providing that each category of users shall pay 
s ubstantially its proportional part of the total cost of 
the operation, and which will provide sufficient 
revenues for the adequate operation, maintenance and 
administration and for reasonable expansion of the 
proj e ct, project, or 6 points 

(2) Applicant is in the process of adopting an acceptable 
sewer use ordinance which will be adopted and placed 
in effect on or before the completion date of the 
proposed project and has established an equitable 
schedule of fees and charges, providing that each 
categor>' of users shall pay substantially its 
proportional part of the total cost of the operation and 
which will provide sufficient revenues for the 
adequate operation, maintenance and administration 
and for reasonable expansion 

of the project. 2 points 

(3) Applicant has established by resolution of the 
governing body a capital reserve fund into which all 
surplus revenues from such charges and fees will be 
placed for the purposes specified in G.S. l59G-9(4). 
(Copy of the resolution must be submitted with 
application.) 3 4 points 

(4) The applicant has followed proper accounting and 
fiscal reporting procedures, as evidenced by the 
applicant's most recent report of audit, and the 
applicant is in substantial compliance with provisions 
of the general fiscal control laws 

of the state. 3 15 points 

The Division of Environmental Management may seek the 
comments of the Secretary of the Local Government 



Commission in determining the values to be assigned to Items 
(3) and (4) of this Rule. 

History Note: Filed as a Temporaij Rule Eff. February 2, 

1988 fi)r a period of 180 days to expire on August 1. 1988; 

ARRC Objection March 17. 1988: 

Authority- G.S. 159G-10: 159G-15: 

Eff. August 1. 1988: 

Temporan' Amendment Eff. March 31, 1999. 

SECTION .0700 - PRIORITY CRITERIA FOR 
WATER SUPPLY SYSTEMS PROJECTS 

.0701 PUBLIC NECESSITY: HEALTH: SAFETY 
AND WELFARE 

Maximum Value—W 100 points: 
(I) System and Service Area Needs: (Maximum 
Points-20) 

(a) The project is intended to increase the source 
of water to meet existing service area needs or 
to alleviate water shortage 

problems. 12 points 

(b) The project is intended to improve an existing 
system with no increase in the area to be 
served. 1 2 points 

(c) The project is intended to increase the existing 
area to be served without improvement of the 
existing system. 12 points 

(d) The project is intended to increase the existing 
area to be served and includes needed 
improvements to the existing 

system. 16 points 

(e) The project is intended to s ignificantly increase 
the existing area to be served and includes 
n ee d e d improvements to the existing system 
and either is a component of or will create a 
regional water supply system, syst e m or is so 
designed as to p e rmit int e rconn e ction at an 
appropriat e — time — with — an — e xpanding 
m e tropolitan, ar e a wid e or 

r e gional s y s t e m. 20 points 

(f) The project is intended to provide for 
construction of a basic system for an area 
which is not presently served by an approved 
public water supply system and service by an 
existing system is not feasible. 20 points 

(3^ Public H e alth N ee d (A maximum of 10 points shall b e 

award e d if mor e than on e it e m applies.). The proj e ct 

is int e nd e d to e liminat e th e following health ri s ks: 

{&) Contaminant l e v e l s in drinking wat e r which 

con s titut e acut e h e alth risks as defin e d in 10 

CFR 1 4 1.32(a)(l )(iii) which is incorporat e d by 

r e f e r e nc e at I5A NCAC I 8 C .1523. 4 points 

(^ Unr e asonabl e risk s to h e alth from contaminant 

l e v e l s in drinking water as d e termin e d by th e 

U.S. Environmental Prot e ction Ag e ncy or th e 

Environm e ntal Epidemiology Section of the 

Departm e nt of Environm e nt, — Health, and 



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1533 



TEMPORAR Y RULES 



Natural Resourc e s pursuant to th e Guidanc e in 
D e v e loping H e alth Crit e ria For D e t e rmining 
Unr e asonabl e Risk to H e alth as publish e d by 
the — ©ffiee — of — Drinking — Water^ — U& 



2(3 



Environm e ntal 



Prot e ction 



Ag e ncy. 

Wa s hington. — W^. — 20460 — and — h e r e by 

incorporat e d — by — r e f e renc e — including — any 

subs e quent am e ndm e nts and e ditions. — This 

material is availabl e for insp e ction at th e 

D e partm e nt — of Environm e nt. — H e alth. — and 

Natural Resources. Division of Environm e ntal 

H e alth. 1330 St. Mar\''s Str ee t. Ral e igh. North 

Carolina. — Copi e s may b e obtain e d from the 

D e partm e nt of Environm e nt. — H e alth, and 

Natural R e sourc es . Division of Environm e ntal 

H e alth. Public Wat e r Supply S e ction. P.O. Box 

19536. Ral e igh. North Carolina 27626 0536 at 

no charge unl e ss subs e qu e nt e ditions e xc ee d 

100 pag e s. 35 point s 

(e) Contaminant l e v e ls in drinking wat e r oth e r 

than those which con s titut e acut e h e alth risks 

described in Sub it e m (2)(a) of 

this Rul er 30 point s 

{4) Inad e quat e tr e atm e nt to r e mov e or abat e 

contaminant l e v e ls in drinking wat e r30 points 

fe) In s uffici e nt wat e r for drinking or for sewag e 

di s po s al purpo ses or inad e quat e wat e r pr ess ur e 

to pr e v e nt contaminant l e v e l s in drinking 

water. 20 points 

(2) Public health and compliance points may be awarded 

to a project based on the following criteria. A 

proposed project shall be necessary to facilitate 

compliance with the N.C. Drinking Water Act or the 

federal Safe Drinking Water Act and to alleviate the 

type of public health concern for which points are 

awarded. A project shall receive only points in the 

highest sub-category for which it may qualify : 

(a) Acute/Imminent Health Hazards. A maximum 

of 60 points shall be awarded to projects that 

propose to eliminate any one or more of the 

following acute, ongoing health hazards to the 

consumer: 

address 



11) 



tin 



Projects that address documented 
nitrate, nitrite or fecal coliform MCL 
violations, or contaminant levels in 
drinking water which constitute acute 
health risks as defined in 40 C.F.R 
I41.32(a)(l)(iii') which is incorporated 
by reference at 15A NCAC 18C .1523; 
or 

Projects that eliminate any contaminant 
in the public water system that poses an 
acute risk or imminent hazard to public 
health as determined by the State Health 
Director or a health risk assessment 
from the Division of Epidemiology. 
Department of Health and Human 
Services in accordance with G.S. I30A- 



(b) Immediate Health Hazards. A maximum of 40 
points shall be awarded to projects that propose 
to eliminate any one or more of the following 
immediate health hazards to the consumer: 

(T) Projects that address surface water 
treatment technique violations occurring 
for two or more consecutive months; 

(ii) Projects that resolve any 
microbiological MCL problems for a 
water system with three or more 
microbiological MCL violations during 
the previous 12 months; 
(iii) Projects that propose filtration for a 
surface water source or for a well that is 
determined to be under the direct 
influence of surface water by the 
Department that does not currently have 
filtration; 
(iv) Projects that address the inability of a 
public water system to inactivate giardia 
and viruses m accordance with 15A 
NCAC 18C.2001; or 

(y) Projects that address documented 
recurrent water outages or low pressure 
below the requirements of 15A NCAC 
18C .0901. Only problems that affect 
human consumption of drinking water 
shall be considered for award of points 
under this criteria. 

(c) Chronic Health Hazards. A maximum of 24 
points shall be awarded to projects that propose 
to eliminate any one or more of the following 
chronic health hazards to the consumer: 

tij Projects that address exceedances of the 
lead and copper action levels under 1 5 A 
NCAC 18C.1507; 
(ii) Projects that address violations of 
inorganic or organic chemical or 
contaminant MCLs under 15A NCAC 
18C. 1510.. 1517. and . 1518; 
(iii) Projects that address violations of 
radiological contamination MCLs under 
15ANCAC 18C. 1520 and. 1521; or 
(iv) Projects that address a chronic health 
hazard as determined by the State 
Health Director or a health risk 
assessment from the Division of 
Epidemiology. Department of Health 
and Human Services. 
Potential Health Hazards. A maximum of 16 
points shall be awarded to projects that propose 
to eliminate any one or more of following 
potential health hazards to the consumer: 
(i) Projects that address low chlorine 

residuals in the distribution system; 
(ii) Projects that address periodic violations 
of an MCL; 



(dj 



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13:18 



TEMPORA RY RULES 



Cm) Projects for line installation or 
extensions to areas with poor water 
quality or limited quantity; 

(iv) Projects to develop new sources of 
water, to augment existing sources, or to 
expand treatment capacity' to meet 
current demand when the average daily 
demand for the previous 12 months 
equals or exceeds the available water 
supply as calculated in local water 
supply plans prepared jn accordance 
with G.S. 143-355(1) or the maximum 
day demand for the previous 12 months 
equals or exceeds the approved water 
treatment plant design capacity; or 

(v) Projects to provide disinfection for a 
system that currently does not have 
disinfection. 
(e) System Improvements. A maximum of 8 

points shall be awarded for projects that shall 

provide any one or more of the following 

general system improvements when needed for 

public health purposes: 
Q Projects that replace water supply 
production or treatment equipment that 
is undersized, malfunctioning or has 
exceeded its useful life; 

(ii) Projects that replace undersized or 
leaking water lines; 

(iii) Projects that address other water quality 
concerns such as iron, manganese, taste, 
and odor; 

(iv) Projects to bring existing facilities to 
current design standards which affect 
water quality such as treatment, 
chemical storage and application, 
pumping facilities, finished storage, 
distribution systems; 

(v) Projects that eliminate dead ends and 
provide looping in a distribution system. 

(vi) Projects that increase water storage 

capacity; 
(vii) Projects to develop new sources of 
water, to augment existing sources, or to 
expand treatment capaci ty to meet 
current demand when the average daily 
demand for the previous 12 months 
exceeds 80 percent of the available 
water supply as calculated in local water 
supply plans prepared in accordance 
with G.S. 143-355(1) or the maximum 
day demand for the previous 12 months 
exceeds 80 percent of the approved 
water treatment plant design capacity; or 
(viii) Projects for installation or upgrade of 
water treatment plant waste disposal 
facilities. 
(3) Capacity for Future Growth (Select One) - 



(Maximum Points -20): 

(a) The project is intended to provide for the 
immediate needs. 6 points 

(b) The project is intended to provide for the 
reasonable growth needs of the area during the 
next 5 to 20 year planning period. 10 points 

(c) The project is a proposed regional system or a 
major component of a regional system which is 
intended to provide for the reasonable growth 
needs of the area to be served during the next 
20 or more years. 20 points 

History Note: Filed as a Temporary Amendment Eff. March 

8. 1994 for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner: 

Filed as a Temporaiy Rule Eff. Februarys 2. 1988 for a period of 

180 days to expire on August 1. 1988; 

ARRC Objection March 17. 1988: 

Authorities. 159G-10: 159G-15: 

Eff. August 1. 1988: 

RRC Objection due to clarity Eff. June 18. 1992: 

Amended Eff. July 24. 1992: 

RRC objection due to ambiguity Eff. June 16. 1994: 

Amended Eff. August 1. 1994: 

Temporar\- Amendment Eff. March 31. 1999. 

.0703 FINANCIAL CONSIDERATIONS 

Maximum Value~34 40 Points: 

( 1 ) Financing of the Project (Select One) 

(Maximum Points— 10): 

(a) Applicant has applied for but not received a 
commitment for fiinding fi^om a federal agency 
for a portion of the project costs. 5 points 

(b) Applicant has funds available or has received 
a commitment for funding from a federal 
agency, or bonds have been authorized to cover 
project costs over and above the state grant or 
loan funds requested. 10 points 

(c) The loan funds requested cover all the 
estimated project costs. 10 points 

(2) Fiscal Responsibility of the Applicant (Maximum 
Points— 4#^ 15). The value of this categorical element 
shall be the sum of the points awarded Items (a) to (c) of 
this Paragraph: 

(a) The applicant has followed proper accounting 
and fiscal reporting procedures as reflected in 
the applicant's most recent report of audit, and 
the applicant is in substantial compliance with 
the provisions of the general fiscal control laws 
of the state. 2 points 

(b) The applicant water system is fiscally 
self-sufficient. 2 points 

(c) Estimated revenues will provide funds for 
proper fiiture operation, maintenance and 
administration, reasonable expansion of the 
project and estimated annual principal and 
interest requirements for the project debt plus 
annual principal and interest requirements on 



13:18 



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March 15, 1999 



1535 



TEMPORARY RULES 



the outstanding debt incurred for existing facilities. 6 H points 
In determining the points to be awarded this categorical element, 
the Division of Environmental Health may seek the comments of 
the Secretary of the Local Government Commission. 

(3) Financial Need of the Applicant (Maximum 
Points--15). The financial need of the applicant will 
be determined by the following formula: 

1 50 (Total Bonded Indebtedness plus 
Points = Total Estimated Project Cost) 

Total Appraised Property Valuation 

"Total bonded indebtedness" includes all outstanding 
bonds as of the first day of the quarter in which the 
project application is eligible for consideration for the 
assignment of a priority but shall not include bonds 
already authorized or sold to finance the proposed 
project. 

"Total appraised property valuation" refers only to 
real property valuation based on the most recent 
appraisal for tax purposes as officially recorded in the 
county or counties in which the service area of the 
proposed project is to be located. 
" 1 50" is used in the formula to provide point values 
for this categorical element. 

History Note: Filed as a Temporary Amendment Eff. March 

8, 1994 for a period of 180 days or until the permanent rule 

becomes ejfective, whichever is sooner: 

Filed as a Temporary Rule Eff. February 2. 1 988 for a period of 

180 days to expire on August 1. 1988: 

ARRC Objection March 17. 1988: 

Authority- G.S. I59G-10: 159G-15: 

Eff. August I, 1988: 

Amended Eff. July 1. 1994: July 1, 1992: 

Temporary Amendment Eff. March 31. 1999. 

SECTION .0800 - PRIORITY REVIEW 
PERIODS: ASSIGNMENT OF PRIORITIES 

.0803 ASSIGNMENT OF CATEGORY 

TO WASTEWATER APPLICATIONS 

(a) Applications to the General Wastewater Revolving Loan 
Account or the High-Unit Cost Wastewater Account will be 
assigned a category as follows, during review of the 
applications: 

( I ) All applications for projects that are under orders er 
proj e ct s who se r e ceiving wat e rs hav e b ee n d e signat e d 
Nutri e nt S e nsitiv e Wat e rs by the Environm e ntal 
Manag e m e nt Commi ss ion or who se receiving water s 
hav e b e en id e ntifi e d as wat e r quality impair e d or 
limit e d in th e mo s t curr e nt basinwid e wat e r qualitv 
manag e m e nt r e port , under moratorium, at or above 
80°o of permitted capacity during the previous 
calendar year, experiencing excessive 
infiltration/inflow, or that would qualify for an 
Emergency Loan under Rule .0204 of this Subchapter, 
and that have submitted final project plans and 



specifications for review and approval by the 
receiving agency, shall be placed in Category 1. 

(2) All applications for projects that are under ord e r s 
orders, under moratorium, at or above 80% permitted 
capacity during the previous calendar year, 
experiencing excessive infiltration/inflow, or that 
would qualify for an Emergency Loan under Rule 
.0204 of this Subchapter or proj e cts whose r e c e iving 
waters have been designat e d Nutrient Sensitive 
Wat e r s — by — the — Environm e ntal — Manag e m e nt 
Commi s sion or whos e r e c e iving waters have be e n 
id e ntifi e d as wat e r quality impaired or limit e d in th e 
most curr e nt basinwide water quality manag e m e nt 
r e port, and that have not submitt e d final proj e ct plans 
and specification s for r e vi e w and approval by the 
r e c e iving ag e ncy and all application s for proj e cts not 
includ e d in Cat e gor>' I that have not submitted final 
project plans and specifications for review and 
approval by the receiving agency shall be placed in 
Category 2. 

(3) All oth e r applications s hall b e plac e d in Cat e gory 3. 
All applications for projects for expanding 
infrastructure primarily to support additional 
development and that have submitted final project 
plans and specifications for review and approval by 
the receiving agency, shall be placed in Category 3. 

(4) All applications for projects for expanding 
infrastructure primarily to support additional 
development that have not submitted final project 
plans and specifications for review and approval by 
the receiving agency shall be placed in Category 4. 

(b) All applications in Category 1 for a specific wastewater 
account will be fiinded before applications in Category 2 in the 
same account. All applications in Category 2 for a specific 
wastewater account will be funded before applications in 
Category 3 in the same account. All applications in Category 3 
will be frinded before applications in Category 4 in the same 
account. 

(c) Proce e ds from th e stat e wid e bond r e f e r e ndum authoriz e d 
by th e ]^93 S.L. c. 5 4 2, s . 10 may only b e us e d to fund proj e cts 
that hav e submitt e d final plan s and sp e cifications for r e vi e w and 
approval by th e r e c e iving ag e ncy. 

History Note: Filed as a Temporary Amendment Eff. March 

8, 1994 for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner: 

Filed as a Temporary Rule Eff. February 2. 1 988 for a period of 

180 days to expire on August 1, 1988; 

ARRC Objection March 17. 1988: 

Authority G.S. 159G-2: 159G-15: 

Eff. August 1. 1988: 

Amended Eff. July 1, 1994: July 1. 1992: 

Temporary Amendment Eff. March 31, 1999. 

SECTION .0900 - LOAN AND GRANT AWARD 

AND COMMITMENT: DISBURSEMENT 

OF LOANS AND GRANTS 



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.0903 CRITERIA FOR LOAN ADJUSTMENTS 

Upon receipt of bids, a loan commitment ma\ be adjusted as 
follows: 

( 1 ) The loan commitment may be decreased, provided the 
project cost as bid is less than the estimated project 
cost, and the receiving agency approves the loan 
commitment decrease. 

(2) Loan commitments may be increased, to a maximum 
of ten p e rc e nt or thr ee five hundred thousand dollars 
(300,000.00) (500.000.00), which e v e r is gr e at e r, 
provided: the project cost as bid is greater than the 
estimated project cost; the project as bid is in 
accordance with the project for which the loan 
commitment was made; the receiving agency has 
reviewed the bids and determined that substantial cost 
savings would not be available through project 
revisions without jeopardizing the integrity of the 
project; and adequate funds are available in the 
account from which the loan was awarded. Increases 
greater than ten percent of the loan commitment shall 
be approved by the receiving agency; the Local 
Government Commission; and, for wastewater 
projects, the Environmental Management 
Commission. 

History Note: Filed as a Temporary Rule Eff. February 2. 

1 988 for a period of 1 80 days to expire on August 1. 1988: 

ARRC Objection March 17. 1988: 

Authority G.S. 159G-12: 159G-15: 

Eff. August 1. 1988: 

Amended Eff. July 1. 1992: 

Temporary- Amendment Eff. March 31. 1999. 

.0904 DISBURSEMENT OF LOANS AND GRANTS 

(a) Disbursement of loan and grant monies shall be made at 
intervals as work progresses and expenses are incurred. No 
disbursement shall be made until the receiving agency receives 
satisfactory documentation of incurred costs. At no time shall 
disbursement exceed the allowable costs which have been 
incurred at that time. 

(b) Project inspection will confirm work progress, and a final 
inspection is required prior to the final disbursement of loan 
monies. 

(c) No disbursement shall be made until the receiving agency 
receives documentation of compliance with the verifiable 
percentage goal for participation by minority businesses in 
accordance with G.S. 1 4 3 12 8 (c). 143-128. 

(d) The receiving agency will notify the Fiscal Manag e m e nt 
Office of the Controller of the Department of Environm e nt, 
H e alth. Environment and Natural Resources to make loan or 
grant disbursements. A check in the amount of the disbursement 
authorized by the receiving agency will be written to the loan or 
grant recipient by the Fiscal Manag e m e nt Offic e . Office of the 
Controller. Th e ch e ck will b e forward e d to th e loan or grant 
r e cipi e nt by th e r e c e iving ag e ncy. 

History Note: Filed as a Temporaiy Amendment Eff. March 
8. 1994 for a period of 180 days or until the permanent rule 



becomes effective, whichever is sooner: 

Filed as a Temporary Rule Eff. February 2. 1 988 for a period of 

180 days to expire on August 1. 1988: 

ARRC Objection March 17. 1988; 

.Authority G.S. 159G-12: 159G-15; 

Eff. August 1. 1988: 

.Amended Eff: July 1. 1994: July 1. 1992: 

Temporary Amendment Eff March 31. 1999. 

SUBCHAPTER 1 L - STATE CLEAN 
WATER BOND LOAN PROGRAM 

SECTION .0100 - GENERAL PROVISIONS 

.0101 PURPOSE 

Loans for wastewater treatment systems, wastewater collection 
systems, water supply systems and water conservation projects 
fi"om the North Carolina Clean Water Bonds Loan Fund 
established by the +W^ S.L. 1998. c. §43. 132, s. 10 shall be 
made in accordance with this Subchapter 

History Note: Filed as a Temporaiy Rule Eff. March 8. 1994. 

for a period of 1 80 days or until the permanent rule becomes 

effective, whichever is sooner: 

Authority S.L. 1998. c. 132. s. 10: 

Eff. July 1, 1994: 

Temporaiy Amendment Eff March 31, 1999. 

.0102 DEFINITIONS 

In addition to the definitions in S.L. c. 542. s. 3, the follow ing 
definitions will apply to this Subchapter: 

(1) "Act" means the North Carolina Education. Clean 
Water, and Parks Bond Act of 1993. 

(2) "Award" means the offer by the receiving agency to 
enter into a loan commitment for a specified amount. 

(3) "Award of contract" means the award b> the loan 
recipient to a contractor of a contract to construct the 
project as bid. 

(4) "Bid" means the amount of money for which a 
contractor offers to construct the project. 

(5) "Contingency costs" means unforeseen costs or 
situations not included in the estimate of project costs. 

(6) "Commitment" means a binding agreement to pay 
loan funds in installments to an eligible applicant at 
some future time. 

(7) "Date of completion" means the date on which the 
project has been completed, as determined by the 
receiving agency. 

(8) "Division of Environmental Health" means the 
Division of Environmental Health of the North 
Carolina Department of Environm e nt. — H e alth. 
Environment and Natural Resources. 

(9) "Division of Environmental Management" means the 
Division of Environmental — Manag e m e nt Water 
Quality of the North Carolina Department of 
Environm e nt. — H e alth. Environment and Natural 
Resources. 

(10) "Effective date of receipt" means September 30 for 



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applications postmarked or hand delivered to the principal 
offices of the receiving agency in Raleigh, North Carolina 
between April 1 and September 30. and means March 3 1 for 
applications postmarked or hand delivered to the principal 
offices of the receiving agency in Raleigh, North Carolina 
between October 1 and March 3 1 . 

(11) "Fiscal year" means the state fiscal year, beginning on 
July 1 of a calendar year and ending on June 30 of the 
following calendar year. In referring to a specific 
fiscal year the year named is the calendar year in 
which the fiscal year ends. For example. Fiscal Year 
1994 refers to the fiscal year beginning July 1, 1993 
and ending June 30, 1994. 

(12) "Inspection" means inspection or inspections of a 
project to determine percentage completion of the 
project and compliance with applicable federal, state 
and local laws or rules. 

(13) "Orders" means any restrictive measure, related to the 
operation of its wastewater treatment facilities, issued 
to an applicant for a loan from the wastewater 
accounts under this Subchapter. Such measures may 
be included in, but are not restricted to. Special 
Orders, Special Orders by Consent, Judicial Orders, 
or issued or proposed permits, permit modifications or 
certificates. 

(14) "Project" means the works described in the 
application for a loan under this Subchapter. 

(15) "Priority period" means priority review period of 
January 1 to June 30 and July 1 to December 31 of 
each year. 

(16) "Real property" means land and structures affixed to 
the land having the nature of real property or interests 
in land including easements or other rights-of-way 
purchased or acquired for facilities and works to be 
constructed as a part of the project for which a loan is 
made under this Subchapter. 

(17) "Receiving agency" means the Division of 
Environmental Health with respect to receipt of 
applications for loans for water supply systems, and 
the Environmental Management Commission and the 
Division of Environmental Management with respect 
to receipt of applications for loans for wastewater 
systems. 

(18) "Regional water supply system" m e ans means: a 
public wat e r supply syst e m of a municipality, county, 
sanitary district, or other political subdivision of th e 
state or combination th e r e of which provid es , i s 
intended to provid e , or is capabl e of providing an 
ad e quat e and s af e supply of wat e r to a substantial 
portion of th e population within a county, or to a 
substantial wat e r service area in a r e gion compo se d of 
all or part s of two or mor e counti e s, or to a 
metropolitan ar e a in two or mor e counti e s. 

(a) A public water system that serves two local 
units of government, or 

(b) A public water system that demonstrates each 
of the following: 

(i) A specific plan to provide drinking 



water throughout the territory of a local 
unit of government, except that a 
municipality shall also demonstrate a 
specific plan to provide drinking water 
outside its extraterritorial jurisdiction; 

(ii) Shares water supply facility resources 
with another public water system or 
eliminate an acute/imminent , immediate, 
chronic, or potential health hazard as 
described in Rule .0701 (a) through (d) 
of this Subchapter in an area containing 
at least 15 residential units which is not 
served by a public water system; and 

(iii) An interlocal agreement or joint 
resolution to be a part of an 
interconnected regional water system 
within 1 years. 

(19) "R e gional wast e wat e r manag e m e nt authority" means 
a unit of government which ha s jurisdiction for 
providing th e wast e wat e r tr e atm e nt work s for thr ee or 
mor e unit s of gov e rnm e nt, or which has r e sponsibility 
within a facility planning ar e a to carr>' out the 
operation and maint e nanc e of all publicly own e d 
wa s t e wat e r tr e atm e nt works. "Regional wastewater 
system" means a public wastewater collection or 
treatment system of a municipality, county, sanitary 
district, or other political subdivision of the State or 
combination thereof that serves two or more units of 
government. 

(20) "Water Reclamation" means the production of a high 
level treated effluent as a reusable, non-potable water 
source. 

(2 1 ) "Water Reuse" means the actual use or application of 
treated wastewater in or on areas which require water 
but do not require potable water quality. 

History Note: Filed as a Temporary Rule Eff. March 8, 1994, 

for a period of 180 days or until the permanent rule becomes 

effective, whichever is sooner: 

Authority S.L.I 998. c. 132. s. 10; 

Eff. July 1. 1994; 

Temporary- Amendment Eff. March 31. 1999. 

SECTION .0200 - ELIGIBILITY REQUIREMENTS 

.0203 LIMITATION OF LOANS 

History Note: Filed as a Temporary Rule Eff. March 8. 1994. 

for a period of 1 80 days or until the permanent rule becomes 

effective, whichever is sooner; 

Authority' 1993 S.L. c. 542. s. 10; 

Eff. July 1. 1994; 

Temporary Repeal Eff. March 31. 



1999. 



.0303 



SECTION .0300 - APPLICATIONS 

FILING OF REQUIRED 
SUPPLEMENTAL INFORMATION 



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(a) An environmental assessment for the proposed project 
must accompany the required wastewater facility plan. It must 
accompany the water supply facility plan when required by G.S. 
113(a). 

(b) All applicants must submit an Affidavit of Publication of 
the notice of public hearing for the proposed project and a 
summary of the comments received at the hearing. 

(c) Any application for wastewater facilities not accompanied 
by final plans and specifications by the date the receiving agency 
sets the priority rating for a priority review period shall not be 
included in the priority rating for that priority review period. 

(d) Any application for water supply faciliti e s projects must 
be accompanied by a preliminary engineering report. 

(e) Any applicant for water supply projects not demonstrating 
approval of plans and specifications within four months from the 
end of the priority rating period shall be transferred to the next 
priority rating period for consideration unless this review is the 
second review in which case a new application shall be required 
for flirther consideration. 

ffrMf) Any application that is not accompanied by an adopted 
resolution stating that the unit of government has complied or 
will comply with all applicable federal, state and local laws or 
rules shall not be included in the priority rating for that priority 
review period. Such resolution shall be certified or attested to 
as a true and correct copy as adopted. 

tf)(g) If a public hearing is held on an application by the 
Department of Environm e nt. H e alth. Environment and Natural 
Resources; the application shall not be included in the priority 
rating unless the hearing process is concluded by the date the 
receiving agency sets the priority rating for the priority review 
period. 

(gXJTJ A certification shall be submitted from the local unit 
stating whether a petition for vote was filed within 1 5 days of 
the applicant's public hearing. 

(¥){i] A certification shall be submitted by the local 
government unit stating that it will be in compliance with 
verifiable Minority Business Enterprise goals as stated in G.S. 
1 1 3 12 8 (c). 143-128. 



included in the priority rating for that priority review period. 

(d) Any application for water supply faciliti e s projects must 
be accompanied by a preliminary engineering report. 

(e) Any applicant for water supply projects not demonstrating 
approval of plans and specifications within four months from the 
end of the priority rating period shall be transferred to the next 
priority rating period for consideration unless this review is the 
second review in which case a new application shall be required 
for further consideration. 

(«)ijQ Any application that is not accompanied by an adopted 
resolution stating that the unit of government has complied or 
will comply with all applicable federal, state and local laws or 
rules shall not be included in the priority rating for that priority 
review period. Such resolution shall be certified or attested to 
as a true and correct copy as adopted. 

ff) (g) If a public hearing is held on an application by the 
Department of Environm e nt. H e alth. Environment and Natural 
Resources; the application shall not be included in the priority 
rating unless the hearing process is concluded by the date the 
receiving agency sets the priority rating for the priority review 
period. 

f^h) A certification shall be submitted from the local unit 
stating whether a petition for vote was filed within 15 days of 
the applicant's public hearing. 

fh-)(i) A certification shall be submitted by the local 
government unit stating that it will be in compliance with 
verifiable Minority Business Enterprise goals as stated in G.S. 
1 4 3 128(c). 143-128. 

Histoiy Note: Filed as a Temporary Rule Eff. March 8. 1994, 

for a period of 180 days or until the permanent rule becomes 

effective, whichever is sooner: 

Authority- S.L 1988, c. 132, s. 10: 

Eff. July 1, 1994: 

Temporary Amendment Eff. March 31, 1999. 

SECTION .0500 - PRIORITY CRITERIA FOR 
WASTEWATER TREATMENT WORKS PROJECTS 



History Note: Filed as a Temporary Rule Eff. March 8. 1 994. 

for a period of 180 days or until the permanent rule becomes 

effective, whichever is sooner: 

Authority S.L 1988, c. 132, s. 10: 

Eff. July 1, 1994: 

Temporary Amendment Eff March 31, 1999. 

.0303 FILING OF REQUIRED 

SUPPLEMENTAL INFORMATION 

(a) An environmental assessment for the proposed project 
must accompany the required wastewater facility plan. It must 
accompany the water supply facility plan when required by G.S. 
113(a). 

(b) All applicants must submit an Affidavit of Publication of 
the notice of public hearing for the proposed project and a 
summary of the comments received at the hearing. 

(c) Any application for wastewater facilities not accompanied 
by final plans and specifications by the date the receiving agency 
sets the priority rating for a priority review period shall not be 



.0501 APPLICABLE CONDITIONS 

Maximum Value - #^ 65 points: 
The value of this Rule will be the sum of the points assigned 
under Items (1), (2), (3) and (4) of this Rule. 

( 1 ) Proposed project will comply with established water 
quality standards and priority points will be assigned 
on the basis of the classification assigned to the 
receiving waters as follows: 

(a) Class "SA" (Shellfish Waters). Class "WS-I" 
or "WS-II" (Water Supply Source). Class 
"ORW" (Outstanding Resource Waters), or 
"HQW" (High Quality Waters), m 20 points 

(b) Class "WS-III". "WS-IV". or "WS-V" (Water 
Supply Source) 38 J_5 points 

(c) Class "B" or "SB" (Bathing 

Waters) 36 10 points 

(d) Class "C" or "SC" (Fishing) 34 5 points 

(2) Construction of propos e d project has b ee n initiat e d 



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or must b e initiat e d within 1 2 months to comply with an ord e r 

is s u e d or with a complianc e sch e dul e approv e d by th e 

Environm e ntal Manag e ment Commission, or by Judicial 

Ord e r. Proposed projects will provide for a regional 

wastewater collection or treatment system. +0 15 points 

(^ Propo se d proj e cts will provide for a r e gional 

wastewat e r tr e atment facility. 10 points 

f4)(3) Proposed project will provide wastewater treatment 

processes for the removal of nutri e nts or oth e r 

mat e rials not normally r e mov e d by conv e ntional 

tr e atm e nt proc esse s, nutrients. 5 points 

(4) Proposed project will result in a reduction of the 

overall volume of elTluent discharged to the state's 

waters by using alternative methods of wastewater 

treatment and disposal. 25 points 

History Note: Filed as a Temporaiy Rule Eff. March 8, 1994, 

for a period of 1 80 days or until the permanent rule become 

effective, whichever is sooner; 

Authority S.L.I 988, c. 132, s. 10: 

Eff. July 1, 1994: 

Temporary Amendment Eff. March 31, 1999. 

.0503 FISCAL RESPONSIBILITY 
OF THE APPLICANT 

Maximum Value— +0 25 points: 
The value of this Rule will be the sum of the points assigned to 
either Item (1) or (2) of this Rule plus the value assigned to 
Items (3) and (4) of this Rule: 

(1) Applicant has adopted an acceptable sewer use 
ordinance which will be placed in effect on or before 
the completion date of the proposed project and has 
established an equitable schedule of fees and charges 
providing that each category of users shall pay 
s ubstantially its proportional part of the total cost of 
the operation and which will provide sufficient 
revenues for the adequate operation, maintenance and 
administration and for reasonable expansion of the 
proj e ct, project, or 6 points 

(2) Applicant is in the process of adopting an acceptable 
sewer use ordinance which will be adopted and placed 
in effect on or before the completion date of the 
proposed project and has established an equitable 
schedule of fees and charges providing that each 
category of users shall pay substantially its 
proportional part of the total cost of the operation and 
which will provide sufficient revenues for the 
adequate operation, maintenance and administration 
and for reasonable expansion of the 

project. 2 points 

(3) Applicant has established by resolution of its 
governing body a capital reserve fund into which all 
surplus revenues from such charges and fees will be 
placed for the purposes specified in G.S. I59G-9(4). 
(Copy of the resolution must be submitted with 
application.) 2 4 points 

(4) The applicant has followed proper accounting and 



fiscal reporting procedures as evidenced by the 
applicant's most recent report of audit and the 
applicant is in s ubstantial compliance with provisions 
of the general fiscal control 

laws of the state. 3 f5 points 

The Environmental Management Commission may seek the 
comments of the Secretary of the Local Government 
Commission in determining the values to be assigned to Items 

(3) and (4) of this Rule. 

History Note: Filed as a Temporary Rule Eff. March 8, 1 994, 

for a period of 180 days or until the permanent rule becomes 

effective, whichever is sooner: 

Authority S.L, 1988. c. 132. s. 10: 

Eff. July 1, 1994: 

Temporary Amendment Eff. March 31, 1999. 

SECTION .0600 - PRIORITY CRITERIA 

FOR WASTEWATER COLLECTION 

SYSTEM PROJECTS 

.0601 PUBLIC NEED 

Select One; Maximum Value~25 points: 

( 1 ) Project is intended to improve or expand an existing 
system for which adequate wastewater treatment 
facilities will be provided by: 

(a) a regional wastewater manag e m e nt authority. 
system. 25 points 

(b) the applicant. 20 points 

(2) Project is intended to provide a basic system for a unit 
of government which is not presently served by an 
approved system and adequate wastewater treatment 
will be provided by: 

(a) a regional wastewater manag e m e nt authority. 
system. 20 points 

(b) the applicant. 15 points 

History Note: Filed as a Temporary Rule Eff. March 8, 1994, 

for a period of 180 days or until the permanent rule becomes 

effective, whichever is sooner: 

Authority S.L. 1998, c. 132, s. 10: 

Eff. July 1. 1994: 

Temporan,' .Amendment Eff. March 31, 1999. 

.0604 FISCAL RESPONSIBILITY OF 
THE APPLICANT 

Maximum Value~W) 25 points: 

The value of this Rule will be the sum of the points assigned 
to either Item (I) or (2) plus the value assigned to Items (3) and 

(4) of this Rule: 

(I) Applicant has adopted an acceptable sewer use 
ordinance which will be placed in effect on or before 
the completion date of the proposed project and has 
established an equitable schedule of fees and charges, 
providing that each category of users shall pay 
substantially its proportional part of the total cost of 
the operation, and which will provide sufficient 
revenues for the adequate operation, maintenance and 



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administration and for reasonable expansion of the proj e ct. 
project, or 6 points 

(2) Applicant is in the process of adopting an acceptable 
sewer use ordinance which will be adopted and placed 
in effect on or before the completion date of the 
proposed project and has established an equitable 
schedule of fees and charges, providing that each 
category of users shall pay s ub s tantially its 
proportional part of the total cost of the operation and 
which will provide sufficient revenues for the 
adequate operation, maintenance and administration 
and for reasonable expansion of the 

project. 2 points 

(3) Applicant has established by resolution of the 
governing body a capital reserve fund into which all 
surplus revenues from such charges and fees will be 
placed for the purposes specified in G.S. 159G-9(4). 
(Copy of the resolution must be submitted with 
application.) 3 4 points 

(4) The applicant has followed proper accounting and 
fiscal reporting procedures, as evidenced by the 
applicant's most recent report of audit, and the 
applicant is in substantial compliance with provisions 
of the general fiscal control laws 

of the state. 3 J_5 points 

The Division of Environmental Management may seek the 
comments of the Secretary of the Local Government 
Commission in determining the values to be assigned to Items 
(3) and (4) of this Rule. 

History Note: Filed as a Temporary Rule Eff. March 8. 1 994. 

for a period of 1 80 days or until the permanent rule becomes 

effective, whichever is sooner: 

Authority S.L. 1998. c. 132. s. 10: 

Eff. July 1. 1994: 

Tempo rar\' Amendment Eff. March 31. 1999. 

SECTION .0700 - PRIORITY CRITERIA 

FOR WATER SUPPLY SYSTEMS 

PROJECTS 

.0701 PUBLIC NECESSITY: HEALTH: 
SAFETY AND WELFARE 

Maximum Value~80 100 points: 
(1) System and Service Area Needs: (Maximum 
Points--20) 

(a) The project is intended to increase the source 
of water to meet existing service area needs or 
to alleviate water shortage 

problems. 12 points 

(b) TTie project is intended to improve an existing 
system with no increase in the area to be 
served. 12 points 

(c) The project is intended to increase the existing 
area to be served without improvement of the 
existing system. 12 points 

(d) The project is intended to increase the existing 
area to be served and includes ne e d e d 



improvements to the existing 

system. 16 points 

(e) TTie project is intended to significantly increase 

the existing area to be served and includes 

needed improvements to the existing system 

and either is a component of or will create a 

regional water supply system, or is so d es ign e d 

as to p e rmit int e rconn e ction at an appropriat e 

twte — with — an — e xpanding — m e tropolitan. 

ar e a wid e or r e gional system. 20 points 

(0 The project is intended to provide for 

construction of a basic system for an area 

which is not presently served by an approved 

public water supply system and service by an 

existing system is not feasible. 20 points 

(3) Public H e alth N ee d (A maximum of 4 points shall b e 

award e d if mor e than on e it e m appli e s.). Th e proj e ct 

is int e nd e d to el iminat e th e following h e alth ri s ks: 

(a) Contaminant lev e ls in drinking wat e r which 

constitut e acut e health ri s ks a s d e fin e d in 4 

CFR I'l 1.32(a)(l )(iii) which is incorporat e d by 

r e f e r e nc e at 15A NCAC 1 8 C .1523. 4 point s 

fb^ Unr e asonable risks to h e alth from contaminant 

l e v e ls in drinking wat e r as d e t e rmin e d by th e 

U.S. Environm e ntal Prot e ction Ag e ncy or th e 

Environm e ntal Epidemiology S e ction of th e 

Department — of Environm e nt. — H e alth. — and 

Natural Resourc es pur s uant to th e Guidanc e in 

Developing H e alth Crit e ria for D e t e rmining 

Unr e asonabl e Ri s k to H e alth a s publi s h e d by 

tlw — Offic e — of — Drinking — Wat e r. — USn 



Environm e ntal 



Prot e ction 



Ag e ncy. 

Wa s hington. — Dt& — 20160 — and — h e r e by 
incorporat e d — by — r e f e r e nc e — including — any 
sub se qu e nt am e ndm e nts and e ditions. — Vim 
mat e rial is availabl e for insp e ction at th e 
D e partm e nt of Environm e nt. — H e alth. — and 
Natural R e sourc e s. Division of Environm e ntal 
H e alth. 1330 St. Mary's Str ee t. Ral e igh. North 
Carolina. — Copi e s may b e obtain e d from th e 
D e partment — of Environment. — H e alth. — and 
Natural R e sourc e s. Division of Environm e ntal 
H e alth. Public Wat e r Supply Section. RO. Box 
19536. Ral e igh. North Carolina 27626 0536 at 
no charg e unl ess subsequent editions e xc ee d 
1 00 pag e s. 35 points 

(e) Contaminant lev e ls in drinlcing wat e r oth e r 
than those which constitute acut e health risks 
d e scribed in Sub it e m (2)(a) of this 
Rul e . 30 points 

(d) Inad e quat e treatm e nt to r e mov e or abat e 
contaminant l e v e ls in drinking 

wat e r. 30 points 

(e) Insuffici e nt wat e r for drinking or for se wag e 
disposal purpos e s or inad e quat e wat e r pr e s s ur e 
to pr e v e nt contaminant l e v e l s in drinking 
wat e r 20 points 
Notwith s tanding oth e r provisions relating to 



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th e a ss ignm e nt of priority' point va l u e s for 

various cat e gorical e l e m e nts and it e ms, th e 

Division of Environm e ntal H e alth may award 

a high e r priority' valu e to an e ligibl e application 

if th e propo se d proj e ct is r e quir e d to e liminat e 

a d e monstrat e d or critical hazard to th e public 

h e alth. 

(2) Public health and compliance points may be awarded 

to a project based on the following criteria. A 

proposed project shall be necessary to facilitate 

compliance with the N.C. Drinking Water Act or the 

federal Safe Drinking Water Act and to alleviate the 

type of public health concern for which points are 

awarded. A project shall receive only points in the 

highest sub-category for which it may qualif\': 

(a) Acute/Imminent Health Hazards. A maximum 
of 60 points shall be awarded to projects that 
propose to eliminate any one or more of the 
following acute, ongoing health hazards to the 
consumer: 

tij Projects that address documented 
nitrate, nitrite or fecal coliform MCL 
violations, or contaminant levels in 
drinking water which constitute acute 
health risks as defined in 40 C.F.R 
141.32(a)(l)(iii) which is incorporated 
by reference at 1 5 A NCAC 1 8C . 1 523 ; 
or 

(ii) Projects that eliminate any contaminant 
in the public water system that poses an 
acute risk or imminent hazard to public 
health as determined by the State Health 
Director or a health risk assessment 
from the Division of Epidemiology. 
Department of Health and Human 
Services in accordance with G.S. 1 30A- 
2iTL 

(b) Immediate Health Hazards. A maximum of 40 
points shall be awarded to projects that propose 
to eliminate any one or more of the following 
immediate health hazards to the consumer: 

ii) Projects that address surface water 
treatment technique violations occurring 
for two or more consecutive months: 
(ii) Projects that resolve any 
microbiological MCL problems for a 
water system with three or more 
microbiological MCL violations during 
the previous 12 months: 
Projects that propose filtration for a 
surface water source or for a well that is 
determined to be under the direct 
influence of surface water by the 
Department that does not currently have 
filtration: 

Projects that address the inability of a 
public water system to inactivate giardia 
and viruses in accordance with ISA 



NCAC 18C.2001: or 
(v) Projects that address documented 
recurrent water outages or low pressure 
below the requirements of 15A NCAC 
18C .0901. Only problems that affect 
human consumption of drinking water 
shall be considered for award of points 
under this criteria. 
(c) Chronic Health Hazards. A maximum of 24 
points shall be awarded to projects that propose 
to eliminate any one or more of the following 
chronic health hazards to the consumer: 
ii) Projects that address exceedances of the 
lead and copper action levels under ISA 
NCAC 18C.1507: 
(ii) Projects that address violations of 
inorganic or organic chemical or 
contaminant MCLs under ISA NCAC 



18C.I510. .lS17.and.lS18: 



(iii) 



liyj 



m 



Projects that address violations of 
radiological contamination MCLs under 
ISA NCAC l8C.lS20and.lS21: or 
Projects that address a chronic health 
hazard as determined by the State 
Health Director or a health risk 
assessment from the Division of 
Epidemiology. Department of Health 
and Human Services. 
id) Potential Health Hazards. A maximum of 16 
points shall be awarded to projects that propose 
to eliminate any one or more of following 
potential health hazards to the consumer: 
ii) Projects that address low chlorine 

residuals in the distribution system: 
(ii) Projects that address periodic violations 

of an MCL: 
(iii) Projects for line installation or 
extensions to areas with poor water 
quality or limited quantity: 
(iv) Projects to develop new sources of 
water, to augment existing sources, or to 
expand treatment capacity to meet 
current demand when the average daily 
demand for the previous 12 months 
equals or exceeds the available water 
supply as calculated in local water 
supph' plans prepared jn accordance 
with G.S. 143-3SS(1) or the maximum 
day demand for the previous 1 2 months 
equals or exceeds the approved water 
treatment plant design capacity: or 
(v) Projects to provide disinfection for a 
system that currently does not have 
disinfection. 
System Improvements. A maximum of 8 
points shall be awarded for projects that shall 
provide a ny one or more of the following 
general svstem improvements when needed for 



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public health purposes: 

(ij Projects that replace water supply 
production or treatment equipment that 
is undersized, malfunctioning or has 
exceeded its useful life; 

(ii) Projects that replace undersized or 
leaking water lines; 

(iii) Projects that address other water quality 
concerns such as iron, manganese, taste, 
and odor; 

(iv) Projects to bring existing facilities to 
current design standards which affect 
water quality such as treatment, 
chemical storage and application, 
pumping facilities, finished storage, 
distribution systems; 

(v) Projects that eliminate dead ends and 
provide looping in a distribution system; 

(vi) Projects that increase water storage 

capacity; 

(vii) Projects to develop new sources of 

water, to augment existing sources, or to 

expand treatment capacity to meet 

current demand when the average daily 

demand for the previous 12 months 

exceeds 80 percent of the available 

water supply as calculated in local water 

suppK' plans prepared in accordance 

with G.S. 143-355(1) or the maximum 

day demand for the previous 12 months 

exceeds 80 percent of the approved 

water treatment plant design capacity; or 

(viii) Projects for installation or upgrade of 

water treatment plant waste disposal 

facilities. 

(3) Capacity for Future Growth (Select One) - (Maximum 

Points -20): 

(a) The project is intended to provide for the 
immediate needs. 6 points 

(b) The project is intended to provide for the 
reasonable growth needs of the area during the 
next 5 to 20 year planning period. 1 points 

(c) The project is a proposed regional system or a 
major component of a regional system which is 
intended to provide for the reasonable growth 
needs of the area to be served during the next 
20 or more years. 20 points 

History Note: Filed as a Temporary Rule Ejf. March 8, 1994 

for a period of 1 80 days or until the permanent rule becomes 

effective, whichever is sooner; 

Authority S.L. 1998. c. 132. s. 10: 

Eff July 1. 1994: 

Temporary' Amendment Eff. March 31. 1999. 

SECTION .0800 - CRITERIA FOR 
WATER CONSERVATION 



.0801 PLANNING AND WATER 
CONSERVATION 

Maximum value - 80 points: 

( 1 ) Applicant may receive a maximum of 1 5 bonus points 
for meeting the following criteria as applicable: 

(a) Applicant demonstrates it has a continuing I/I 
program in its wastewater sewer maintenance 
program. (Wastewater Projects 

Only) 5 points 

(b) Applicant demonstrates it has a continuing 
water loss program in its water supply system 
program. (Water Supply Projects 

Only) 5 points 

(c) Applicant demonstrates jt has a continuing 
program of water conservation education and 
information. 5 points 

(d) Applicant demonstrates it has established a 
water conservation incentive rate structure; 
created incentives for new or replacement 
installation of low flow faucets, shower heads, 
and toilets; or has a water reclamation or 
reuse system. 5 points 

(2) Applicant may also receive a maximum of 25 bonus 
points for meeting the following criteria: 

(a) Applicant demonstrates that jt has adopted a 
comprehensive land-use plan that meets the 
requirements of G.S. I55H. Article 18 or G.S. 
I60A. Article 19. or applicant is a local 
government unit that is not authorized to adopt 
a comprehensive land-use plan but that is 
located jn whole or in part jn another local 
government unit that has adopted a 
comprehensive land-use plan, and that the 
proposed project is consistent with 

the plan. 7 points 

(b) Applicant demonstrates that the comprehensive 
land-use plan exceeds the minimum state 
standards for the protection of water 
resources. 8 points 

(c) Applicant demonstrates that actions have been 
taken toward implementation of the 
comprehensive land-use plan. These actions 
may include the adoption of a zoning ordinance 
or any other measure that significantly 
contributes to the implementation of the 
comprehensive land-use plan. 10 points 

(3) Applicant may receive a maximum of 20 bonus points 
for the following criteria: 

(a) Applicant has developed a capital improvement 
plan as defined in Session Laws 1998. Chapter 

132. 1 5 points 

(b) Proposed project is consistent with the water 
supply watershed protection requirements of 
G.S. 143-214.5. 5 points 

(4) Applicant may receive a maximum of 20 bonus points 
for the following criteria: 

(a) Applicant demonstrates voluntary water supply 
watershed protection activities in excess of the 



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minimum requirements of 

G.S. 143-214.5, or 15 points 

£b) Applicant demonstrates it has developed a 

voluntary wellhead protection 

program, or 1 5 points 

(c) Applicant demonstrates k has both 

Subparagraphs ( 1 ) and (2) of this 

Paragraph. 20 points 

History Note: Filed as a Temporary Rule Ejf. March 8. 1 994, 

for a period of 1 80 days or until the permanent rule becomes 

effective, whichever is sooner: 

Authority S.L 1998, c. 132, s. 10: 

Eff.Julyl, 1994: 

Temporan' Amendment Eff. March 31, 1999. 

SECTION .0900 - PRIORITIES 

.0902 ASSIGNMENT OF CATEGORY TO 
WASTEWATER APPLICATIONS 

(a) Applications for loans for wastewater projects will be 
assigned a category as follows, during review of the 
applications: 

( 1 ) All applications for projects that are under orders er 
projects whos e r e c e iving wat e rs have been d e signat e d 
Nutrient S e nsitiv e Wat e r s by th e Environm e ntal 
Manag e m e nt Commis s ion or whos e r e c e iving wat e rs 
hav e b ee n id e ntifi e d as wat e r quality ' impair e d or 
limit e d in th e most curr e nt ba s inwid e wat e r quality 
manag e ment r e port , under moratorium, at or above 
80% of permitted capacity during the previous 
calendar year. experiencing excessive 
infiltration/inflow, or that would qualify for an 
Emergency Loan under Rule .0204 of this Chapter. 
and that have submitted final project plans and 
specifications for review and approval by the 
receiving agency, shall be placed in Category I . 

(2) All oth e r application s s hall b e plac e d in Cat e gory' 2. 
All applications for projects that are under orders, 
under moratorium, at or above 80% permitted 
capacity during the previous calendar year, 
experiencing excessive infiltration/inflow, or that 
would qualify for an Emergency Loan under Rule 
■0204 of thjs Rules that have not submitted final 
project plans and specifications for review and 
approval by the receiving agency shall be placed in 
Category 2. 

(3) All applications for projects for expanding 
infrastructure primarily to support additional 
development and that have submitted final project 
plans and specifications for review and approval by 
the receiving agency, shall be placed in Category 3. 

(4) All a pplications for projects for expanding 
infrastructure primarily to support additional 
development that have not submitted final project 
plans and specifications for review and approval by 
the receiving agency shall be placed in Category 4. 

(b) All applications in Category 1 for a specific wastewater 



account will be funded before applications in Category 3t 2 in 
the same account. All applications in Category 2 for a specific 
wastewater account will be funded before applications in 
Category 3 in the same account. All applications in Category 3 
will be funded before applications m Category 4 in the same 
account. 

History Note: Temporary Rule Ejf. March 8. 1994, for a 

period of 180 days or until the permanent rule becomes 

effective, whichever is sooner: 

Authority S.L. 1998. c. 132. s. 10; 

Eff. July 1, 1994: 

Temporary Amendment Eff. March 31. 1999. 

SECTION .1000 - LOAN AWARD, 
COMMITMENT, AND DISBURSEMENT 

.1003 CRITERIA FOR LOAN ADJUSTMENTS 

Upon receipt of bids, a loan commitment for water supply 
projects may be adjusted as follows: 

( 1 ) The loan commitment may be decreased, provided the 
project cost as bid is less than the estimated project 
cost, and the receiving agency approves the loan 
commitment decrease. 

(2) Loan commitments may be increased, by a maximum 
of 10 percent or thre e hundred thousand dollars 
($300,000.00) provided: the project cost as bid is 
greater than the estimated project cost; the project as 
bid is in accordance with the project for which the 
loan commitment was made; the receiving agency has 
reviewed the bids and determined that substantial cost 
savings would not be available through project 
revisions without jeopardizing the integrity of the 
project; and adequate funds are available. 

(3) Increases greater than 10 percent of the loan 
commitment shall be approved by the receiving 
agency and the Local Government Commission. 

History Note: Filed as a Temporary Rule Ejf. March 8. 1 994. 

for a period of 1 80 days or until the permanent rule becomes 

effective, whichever is sooner: 

.Authority S.L 1998. c. 132, s. 10: 

Ejf. July 1. 1994: 

Temporary- Amendment Eff March 31. 1999. 

.1004 DISBURSEMENT OF LOANS 

(a) Disbursement of loan monies shall be made at intervals as 
work progresses and expenses are incurred. No disbursement 
shall be made until the receiving agency receives documentation 
of incurred costs. At no time shall disbursement exceed the 
allowable costs which have been incurred at that time. 

(b) Project inspection will confirm work progress, and a final 
inspection is required prior to the final disbursement of loan 
monies. 

(c) No disbursement shall be made until the receiving agency 
receives documentation of compliance with the verifiable 
percentage goal for participation by minority businesses in 
accordance with G.S. 143-128(c). 



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(d) The receiving agency will notify the Fiscal Manag e m e nt 
Office of the Controller of the Department of Environm e nt. 
Health, Environment and Natural Resources to make loan 
disbursements. A check in the amount of the disbursement 
authorized by the receiving agency will be written to the 
recipient by the Fiscal Manag e m e nt Offic e . Office of the 
Controller . The ch e ck will b e forward e d to th e r e cipi e nt by th e 
r e c e iving ag e ncy. 

History- Note: Filed as a Temporary Rule Eff. March 8, 1994, 

for a period of 180 days or until the permanent rule becomes 

effective, whichever is sooner; 

Authority S.L 1998, c. 132. s. 10: 

Eff. July 1. 1994: 

Temporary .Amendment Eff. March 31, 1999. 

Rule-making Agency: DENR - Environmental Management 
Commission 

Rule Citation: 15.4 NC.4C 2D .1801 - .1805; 2Q.0I02 

Effective Date: March 1, 1999 

Findings Reviewed and Approved by: Beecher R Gray 

Authority for the rule-making: G.S. 143-213; 143- 
215.3(a)('l): 143-215.65; 143-215.66: 143-215. 107(a)(1): 143- 
215. 107(a>(ll): 143-215.108 

Reason for Proposed Action: To adopt temporary rules to 
control odorous emissions from animal operations. House Bill 
515 requires the Environmental Management Commission to 
adopt temporary rules by March 1, 1999 to regulate the 
emission of odors from animal operations. The temporaiy rules 
and permanent rules may be the same or they may differ 

Comment Procedures: Comments on the temporary rules 
should be sent to: 

Mr Thomas C. Allen 
Division of Air Quality 

PO Box 29580 

Raleigh, NC 27604-0580 

(919) 733-1489 Phone 

(919) 715-7476 Fax 

thom alien a).aq. ehnr state, nc. us (e-mail) 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2D - AIR POLLUTION CONTROL 
REQUIREMENTS 

SECTION .1800 - CONTROL OF ODORS 

.1801 DEFINITIONS 

For the purpose of this Section, the following definitions 



apply: 



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01 



(4} 



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(6) 

12} 



"Contr ol technology" means economically feasible 
control devices installed to effectively reduce 
objectionable odors from animal operations. 
"Animal operation" means animal operation as 
defined at G.S. 143-2 15.1 OB. 

"Construction" means any physical change (including 
fabrication, erection, installation, replacement, 
demolition, excavation, or other modification) at any 
contiguous area under common control. 
"Existing animal operation" means an animal 
operation that js in operation or commences 
construction on or before February 28. 1999. 
"Modified animal operation" means an animal 
operation that commences construction after February 
28. 1999. to increase the number of animals that can 
be housed at that animal operation, to relocate bams 
used to house animals, to add a new lagoon, or to 
replace an existing lagoon. 

"New animal operation" means an animal operation 
that commences constiojction after February 28. 1999. 
"Objectionable odor" means any odor present in the 
ambient air that by itself, or in combination with other 
odors, is or may be harmful or injurious to human 
health or welfare, or may unreasonably interfere with 
the comfortable use and enjoyment of life or property. 
Odors are harmfiil or injurious to human health if they 
tend to lessen human food and water intake, interfere 
with sleep, upset appetite, produce irritation of the 
upper respirator\' tract, or cause s\Tnptoms of nausea. 
or if their chemical or physical nature is. or may be. 
detrimental or dangerous to human health. 
"Technologically feasible" means that an odor control 
device or a proposed solution to an odor problem has 
previously been demonstrated to accomplish its 
intended objective, and is generally accepted within 
the technical community. ft is possible for 
technologically feasible solutions to have 
demonstrated their suitability on similar, but not 
identical, sources for which they are proposed to 
control. 



History Note: Authority G.S. 143-213: 143-21 5.3(a)(1): 143- 

215.107(a)(ll); 

Temporary .Adoption Eff. March J_^ 1999. 

.1802 CONTROL OF ODORS FROM ANIMAL 
OPERATIONS 

(a) Purpose. The purpose of this Rule is to address 
objectionable odors fi'om animal operations beyond the 
boundaries of animal operations. It is not to eliminate all odors 
from animal operations beyond the boundaries of tjie animal 
operations. 

(b) Applicability. This Rule shall apply to all animal 
operations. 

(c) Required management practices. All animal operations 
shall be required to implement management practices for the 
control of odors as follows: 



(8) 



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(1 ) The discharge point of the flush water discharge pipe 
shall extend to a point below the surface of the animal 
wastewater lagoon; 

(2) The carcasses of dead animals shall be properly stored 
at aJJ times and disposed of within 48 hours; 

(3) Waste from animal wastewater application spray 
systems shall not be applied when there is danger of 
drift from the irrigation field beyond the boundary of 
the animal operation, except waste from application 
spray systems may be applied jn an emergency to 
maintain safe lagoon freeboard if the owner or 
operator notifies the Department and resolves the 
emergency with the Department as written in Section 
III. 6 of the Swine Waste Operation General Permit; 

(4) Animal wastewater application spra\ system intakes 
shall be located near the liquid surface of the animal 
wastewater lagoon; 

(5) Ventilation fans shall be maintained according to the 
manufacturer's specifications; 

(6) Animal feed storage containers located outside of 
animal containment buildings shall be covered; and 

(7) Animal wastewater flush tanks shall be covered with 
a device that is designed for ready access to prevent 
overflow. 

(d) Location of objectionable odor determinations. 

(1) For an existing animal operation that does not meet 
the siting requirements in Subparagraph (i)( I ) of this 
Rule, objectionable odors shall be determined at 
adjacent occupied residences as defined in G.S. 106- 
802 not owned by the owner of the animal operation, 
businesses, schools, hospitals, churches, outdoor 
recreation facilities, national parks. State Parks as 
defined in G.S. 1 13-44.9. historic properties acquired 
by the State pursuant to G.S. 121-9 or listed in the 
North Carolina Register of Historic Places pursuant to 
G.S. 121-4.1. or child care centers as defined in G.S. 
110-86 that are licensed under Article 7 of G.S. 1 10. 
For occupied residences, businesses, schools, 
hospitals, churches, or child care centers, the 
determination shall be made at the principal structure. 

(2) For a new animal operation or existing animal 
operation that meets the siting requirements in 
Subparagraph (i)( 1) of this Rule, objectionable odors 
shall be determined beyond the boundary of the 
animal operation. 

(e) Determination of the existence of an objectionable odor. 
In deciding if an animal operation is causing or contributing to 
an objectionable odor, the Director may consider one or more of 
the following: 

( 1) the nature, intensity, frequency, peryasiveness. and 
duration of the odors from the animal operation; 

(2) the potential of the animal operation to emit known 
odor causing compounds, such as ammonia, total 
volatile organics. or hydrogen sulfide, at levels that 
could cause or contribute to an objectionable odor; 

(3) any epidemiological studies associating health 
problems with odors from the animal operation or 
documented health problems associated with odors 



from the animal operation provided by the State 

Health Director; or 
(4) any other evidence, including complaints, that shows 

that the animal operation is causing or contributing to 

an objectionable odor. 
(0 Requirement for a best management plan for controlling 
odors from existing animal operations. If the Director finds that 
an existing animal operation is causing or contributing to an 
objectionable odor, the owner or operator of the animal 
operation shall: 

(1) submit to the Director as soon as practical, but not to 
exceed 90 days after receipt of written notification 
from the Director that the animal operation is causing 
or contributing to an objectionable odor, a best 
management plan for odor control as described m 
Rule .1803 of this Section; and 

(2) be in compliance with the terms of the plan within 30 
days after the Director approves the best management 
plan (compliance with an approved compliance 
schedule in the best management plan is deemed to be 
in compliance with the plan). 

(g) Requirement for amendment to best management plan. If 
the Director determines that a plan does not control 
objectionable odors from the animal operation, the Director shall 
require the owner or operator of the animal operation to amend 
the plan to incorporate additional or alternative measures to 
control objectionable odors from the animal operation. The 
owner or operator shall: 

(1) submit a revised best management plan to the Director 
as soon as practical but not later than 60 days of 
receipt of written notification from the Director that 
the plan is inadequate; and 

(2) be in compliance with the revised plan within 30 days 
after the Director approves the revisions to the best 
management plan (compliance with an approved 
compliance schedule in the best management plan is 
deemed to be in compliance with the plan). 

(h) Plan failure. Any of the following conditions shall 
constitute failure of a best management plan: 

(1) failing to submit the initial best management plan 
required under Paragraph (f) of this Rule within 90 
days of receipt of written notification from the 
Director that the animal operation is causing or 
contributing to an objectionable odor; 

(2) failing to submit a revised best management plan 
required under Paragraph (g) of this Rule within 60 
days of receipt of written notification from the 
Director that the animal operation is causing or 
contributing to an objectionable odor; 

(3) failing to correct all deficiencies in a submitted best 
management plan under Rule .1803(b) of this Section 
within 30 days of receipt of written notification from 
the Director to correct these deficiencies; 

(4) failing to implement the best management plan after 
it has been approved; or 

(5) finding by the Director, using the criteria under 
Paragraph (e) of this Rule, that, after the best 
management plan has been implemented and revised 



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up to three times, it does not adequately control 
objectionable odors from the animal operation and 
will not adequately control objectionable odors even 
with fiirther amendments. 
{jj Requirements for control technology. If a plan failure 
occurs, the Director shall require the owner or operator of the 
animal operation to install control technologs to control odor 
from the animal operation. The owner or operator shall submit 
within 90 days from receipt of written notification from the 
Director of a plan failure, a permit application for control 
technology and an installation schedule. If the owTier or operator 
demonstrates to the Director that a permit application cannot be 
submitted within 90 days, the Director may extend the time for 
submittal up to an additional 90 days. Control technology shall 
be determined according to Subparagraph ( I ) of this Paragraph. 
The installation schedule shall contain the increments of 
progress described in Subparagraph (2) of this Paragraph. The 
owner or operator may at any time request adjustments in the 
installation schedule and shall in ins request explain why the 
schedule cannot be met. If the Director Finds that the reason for 
not meeting the schedule is valid, the Director shall revise the 
installation schedule as requested; however, the Director shall 
not extend the Fmal compliance date beyond 24 months from the 
date that the permit was first issued for the control technology. 
The owner or operator shall certify to tfie Director within five 
days after the deadline for each increment of progress described 
in Subparagraph (2) of \h\s Paragraph whether the required 
increment of progress has been met. 

( 1) Control technology. The owner or operator of an 
animal operation shall identify' control technologies 
that are technologically feasible for his animal 
operation and shall select the control technology or 
control technologies that the owner or operator 
identifies as most effective for his operation 
considering human health, energy, environmental, and 
economic impacts and other costs. TTie oyvner or 
operator shall explain the reasons for selecting the 
control technolog\ or control technologies. If the 
Director finds that the selected control technology or 
control technologies will effectively control odors 
following the procedures in 15A NCAC 20 .0300 or 
■0500. he shall approve the installation of the control 
technology or control technologies for this animal 
operation. The owner or operator of the animal 
operation shall comply with all terms and conditions 
in the permit. 

(2) Installation schedule. The installation schedule for 
control technology shall contain the following 
increments of progress: 

(A) a date by which confracts for odor control 
systems and equipment shall be awarded or 
orders shall be issued for purchase of 
component parts; 

(B) a date by which on-site construction or 
installation of the odor control systems and 
equipment shall begin; 

(Q a date by which on-site construction or 
installation of the odor control systems and 



equipment shall be completed; and 
(D) a date by which final compliance shall be 

achieved. 
Control technology shall be in place and operating as 
soon as practical but not to exceed 12 months from 
the date that the permit is issued for control 
technology. 
(jj New or modified animal operations. 

(1) The owner or operator of a new or modified animal 
operation that meets the following siting requirements 
shall submit and have an approved best management 
plan before beginning construction. 

(A) A house or lagoon that is a component of an 
animal operation shall be located: 

(i) at least 1500 feet from any occupied 
residence not oyvned by the owner of the 
animal operation; 

(ii) at least 2500 feet from any school, 
hospital, church, outdoor recreation 
facility; national park; State Park, as 
defined in G.S. 1 13-44.9. historic 
property acquired by the State pursuant 
to G.S. 121-9 or listed in tlie North 
Carolina Register of Historic Places 
pursuant to G.S. 12 1 -4. 1, or child care 
center, as defined in G.S. 1 10-86. that is 
licensed under Article 7 of G.S. 1 10; 
and 

(iii) at least 500 feet from any property 
boundary, 

(B) The outer perimeter of the land area onto 
which waste is applied from a lagoon that is a 
component of an animal operation shall be: 

(i) at least 75 feet from any boundary of 
property on which an occupied 
residence not owned by the owner of the 
animal operation is located, and 

(ii) at least 200 feet from any occupied 
residence not oyvned by the owner of the 
animal operation. 

(2) The owner or operator of a new or modified animal 
operation that does not meet the siting requirements of 
Subparagraph ( 1 ) of this Paragraph shall: 

(A) submit and have an approved best management 
plan before beginning construction, and 

(B) install control technology as described in 
Subparagraph (i)( 1 ) of this Rule. The owner or 
operator of the building shall submit and have 
an approved air permit before commencing 
construction of the animal operation. 

(3) The Director shall either approve or disapprove the 
best management plan submitted under this Paragraph 
within 90 days after receipt of the plan. If the 
Director disapproves the plan, he shall identify the 
plan's deficiency. 



History Note: 
215.107(a)(ll). 



Authority G.S. 

N3-2 15. 108(a): 



143-215. 3(a)(1): 143- 



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Temporaty Adoption Eff. March l^ 1999. 

.1803 BEST MANAGEMENT PLANS FOR ANIMAL 
OPERATIONS 

(a) Contents of a best management plan. The best 
management plan for animal operations shall: 

(I) identify the name, location, and owner of the animal 
operation: 

identify the name, title, address, and telephone 
number of the person filing the plan; 
identify the sources of odor within the animal 
operation: 

describe how odor will be controlled from: 
(A) the animal houses: 

the animal wastewater lagoon, if used: 

the animal wastewater application lands, if 

used: 

waste conveyances and temporary 

accumulation points: and 

other possible sources of odor within the 

animal operation: 
contain a diagram showing all structures and lagoons 
at the animal operation, forced air directions, and 
approximate distances to structures or groups of 
structures within 3000 feet of the property line of the 
animal operation; a recent or updated aerial 
photograph may be submitted in place of a diagram 
provided the items required under this Subparagraph 
of this Rule are shown: 

for existing animal operations, contain a schedule not 
to exceed 12 months by which the plan will be 
implemented (a new animal operation is to have and 
be in compliance with its best management plan when 
it begins operation); 

describe how the plan will be implemented, including 
training of personnel; 

describe inspection and maintenance procedures; and 
describe methods of monitoring and recordkeeping to 
verify compliance with the plan. 

(b) Approval of the best management plan. The Director 
shall approve the plan if he finds that: 

(1) the plan contains all the required elements in 

Paragraph (a) of this Rule; 
£2} the proposed schedule contained in the plan will 

reduce objectionable odors in a timely manner: 

(3) the methods used to control objectionable odors are 
likely to prevent objectionable odors beyond the 
property lines of the animal operation: and 

(4) the described compliance verification methods are 
sufficient to verify compliance with the plan. 

If the Director finds that the proposed plan does not meet the 
requirements of this Paragraph of this Rule, he shall notify the 
owner or operator of the animal operation in writing of the 
deficiencies in the proposed plan. The owner or operator shall 
have 30 days after receiving written notification from the 
Director to correct the deficiencies. If the Director finds that the 
proposed plan is acceptable, he shall notify the owner or 
operator in writing that the proposed plan has been approved. 



m 



12} 

m 

(9J 



History Note: Authority' G.S. 143-215. 3(a)(1): 143-215.65; 
143-215.66: 143-215-215. 107(a)(ll); 
Temporary Adoption Eff. March l_^ 1999. 

.1804 REPORTING REQUIREMENTS FOR ANIMAL 
OPERATIONS 

If the Department receives an odor complaint about an animal 
operation, the Department may require the owner or operator of 
the animal operation to submit the following information: 
(1) the name and location of the animal operation: 

the name, title, address, and telephone number of the 

person filing the report; 

the type and number of animals at the animal 

operation: 

potential sources of odors, such as animal housing 

structures, lagoons, collection and handling devices, 

and storage containers, with a physical description of 

these sources; 

waste water land application procedures; and 

measures taken to reduce odors. 
This information shall be submitted to the Division within 15 
days after receipt of the request. 



Ql 



(4j 



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History Note: Authority G.S. 143-215. 3(a)(1); 143-215.65; 
143-215.66: 143-215-215. 107(a)(ll); 
Temporary' Adoption Eff. March 1, 1999. 

.1805 IMPLEMENTATION PLAN 

(a) On March I, 1999, the Division of Air Quality shall have 
in place an inventory of the State's existing animal operations. 
This inventory shall be sorted into the following three classes: 

(1) Class 1 High Nuisance Odor potential: 

(2) Class II Moderate Nuisance Odor potential; and 

(3) Class 111 Low Nuisance Odor potential. 

(b) The classifications in Paragraph (a) of this Rule shall be 
made by the Director based on input from Division of Water 
Quality and Division of Soil and Water Conservation staff using 
the following criteria: 

(I) size of animal operation; 

proximity to other animal operations; 

proximity to nearest residence or public area not 

located on the property on which the animal operation 

is based; 

overall performance and enforcement history of the 

operation; 

records of health concerns related to the operation's 

odor emissions; and 

history of complaints. 

(c) The Director may move an animal operation to a different 
Class based on new information obtained after March 1, 1999. 



(3J 



(4} 
16} 



History Note: Authority G.S. 143-215. 3(a)(1); 143- 

215.W7(a)(ll): 

Temporary' Adoption Eff March 1, 1999. 

SUBCHAPTER 2Q - AIR QUALITY PERMIT 
PROCEDURES 



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SECTION .0100 - GENERAL PROVISIONS 

.0102 ACTIVITIES EXEMPTED FROM PERMIT 
REQUIREMENTS 

(a) If a source is subject to any of the following mles. then 
the source is not exempted from peirnit requirements, and the 
exemptions in Paragraph (b) of this Rule do not apply: 

( 1 ) new source performance standards under 1 5 A NCAC 
2D .0524 or 40 CFR Part 60, except; 

(A) 40 CFR Part 60, Subpart Dc, industrial, 
commercial, and institutional steam generating 
units located at a facility not required to be 
permitted under Section .0500 of this 
Subchapter; 

(B) 40 CFR Part 60. Subpart Kb. volatile organic 
liquid storage vessels located at a facility not 
required to be permitted under Section .0500 of 
this Subchapter; or 

(C) 40 CFR Part 60, Subpart AAA. new residential 
wood heaters; 

(2) national emission standards for hazardous air 
pollutants under 15A NCAC 2D .1110 or 40 CFR 
Part 61, except asbestos demolition and renovation 
activities; 

(3) prevention of significant deterioration under 15A 
NCAC 2D .0530? 

(4) new source review under 15A NCAC 2D .0531 or 
.0532; 

(5) sources of volatile organic compounds subject to the 
requirements of 15A NCAC 2D .0900 that are located 
in Mecklenburg County in accordance with 15A 
NCAC 2D .0902; 

(6) sources required to apply maximum achievable 
control technology (MACT) for hazardous air 
pollutants under 1 5 A NCAC 2D . 1 1 09, . 1 1 1 1 .. 1 1 1 2. 
or 40 CFR Part 63 that are required to have a permit 
under Section .0500 of this Subchapter; or 

(7) sources at facilities subject to 1 5 A NCAC 2D . 1 1 00. 
(If a source does not emit a toxic air pollutant for 
which the facility at which it is located has been 
modeled, it shall be exempted from needing a permit 
if it qualifies for one of the exemptions in Paragraph 
(b) of this Rule). 

(b) The following activities do not need a permit or permit 
modification under this Subchapter; however, the Director may 
require the owner or operator of these activities to register them 
under 15A NCAC 2D .0200: 

(1) activities exempted because of category (These 
activities shall not be included on the permit 
application or in the permit.): 
(A) maintenance, upkeep, and replacement: 

(i) maintenance, structural changes, or 
repairs which do not change the capacity 
of such process. fliel-buming, 
refuse-burning, or control equipment, 
and do not involve any change in quality 
or nature or increase in quantity of 
emission of regulated air pollutants; 



(ii) housekeeping activities or building 
maintenance procedures, including 
painting buildings, resurfacing floors, 
roof repair, washing, portable vacuum 
cleaners, sweeping, use and associated 
storage of janitorial products, or 
insulation removal; 

(iii) use of office supplies, supplies to 
maintain copying equipment, or 
blueprint machines; 

(iv) use of fire fighting equipment; 
(v) paving parking lots; or 

(vi) replacement of existing equipment with 
equipment of the same size, type, and 
function that does not result in an 
increase to the actual or potential 
emission of regulated air pollutants and 
that does not affect the compliance 
status, and with replacement equipment 
that fits the description of the existing 
equipment in the permit, including the 
application, such that the replacement 
equipment can be operated under that 
permit without any changes in the 
permit; 

(B) air conditioning or ventilation: comfort air 
conditioning or comfort ventilating systems 
which do not transport, remove, or exhaust 
regulated air pollutants to the atmosphere; 

(C) laboratory activities: 

(i) bench-scale, on-site equipment used 
exclusively for chemical or physical 
analysis for quality control purposes, 
staff instruction, water or wastewater 
analyses, or non-production 

environmental compliance assessments; 

(ii) bench-scale experimentation, chemical 
or physical analyses, training or 
instruction from not-for-profit, non- 
production educational laboratories; 

(iii) bench-scale experimentation, chemical 
or physical analyses, training or 
instruction from hospitals or health 
laboratories pursuant to the 
determination or diagnoses of illness; or 

(iv) research and development laboratory 
activities that are not required to be 
permitted under Section .0500 of this 
Subchapter provided the activity 
produces no commercial product or 
feedstock material; 

(D) storage tanks: 

(i) storage tanks used solely to store fuel 
oils, kerosene, diesel, crude oil, used 
motor oil, lubricants, cooling oils, 
natural gas or liquified petroleum gas; 

(ii) storage tanks used to store gasoline for 
which there are no applicable 



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1549 



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requirements except Stage I controls 
under 15A NCAC 2D .0928; 

(iii) storage tanks used solely to store 
inorganic liquids; or 

(iv) storage tanks or vessels used for the 
temporary containment of materials 
resulting from an emergency response to 
an unanticipated release of hazardous 
materials; 

(E) combustion and heat transfer equipment: 

(i) space heaters burning distillate oil, 
kerosene, natural gas, or liquified 
petroleum gas operating by direct heat 
transfer and used solely for comfort 
heat; 

(ii) residential wood stoves, heaters, or 
fireplaces; 

(iii) hot water heaters which are used for 
domestic purposes only and are not used 
to heat process water; 

(F) wastewater treatment processes: industrial 
wastewater treatment processes or municipal 
wastewater treatment processes for which there 
are no applicable requirements; 

(G) gasoline distribution: 

(i) gasoline service stations or gasoline 
dispensing facilities that are not required 
to be permitted under Section .0500 of 
this Subchapter; or 
(ii) gasoline dispensing equipment at 
facilities required to be permitted under 
Section .0500 of this Subchapter if the 
equipment is used solely to refuel 
facility equipment; 
(H) dispensing equipment: equipment used solely 
to dispense diesel fuel, kerosene, lubricants or 
cooling oils; 
(I) solvent recycling: portable solvent distillation 
systems used for on-site solvent recycling if 
(i) The portable solvent distillation system 
is not: 

(1) owned by the facility, and 
(II) operated at the facility for more 
than seven consecutive days; and 
(ii) The material recycled is: 

(I) recycled at the site of oingin, 
(II) the original material is non- 
photochemical ly reactive in 
accordance with 1 5 A NCAC 2D 
.0518, Miscellaneous Volatile 
Organic Compound Emissions, 
and 
(III) all make up material is non- 
photochemically reactive in 
accordance with 15A NCAC 2D 
.0518; 
(J) processes: 

(i) small electric motor burn-out ovens with 



secondary combustion chambers or 
afterburners; 

(ii) small electric motor bake-on ovens; 

(iii) bum-off ovens for paint-line hangers 
with afterburners; 

(iv) hosiery knitting machines and 
associated lint screens, hosiery dryers 
and associated lint screens, and hosiery 
dyeing processes where bleach or 
solvent dyes are not used; 

(v) blade wood planers planing only green 
wood; 
(K) miscellaneous: 

(i) motor vehicles, aircraft, marine vessels, 
locomotives, tractors or other 
self-propelled vehicles with internal 
combustion engines; 

(ii) non-self-propelled non-road engines, 
except generators, regulated by rules 
adopted under Title II of the federal 
Clean Air Act; 

(iii) equipment used for the preparation of 
food for direct on-site human 
consumption; 

(iv) a source whose emissions are regulated 
only under Section 1 I2(r) or Title VI of 
the federal Clean Air Act that is not 
required to be permitted under Section 
.0500 of this Subchapter; 
(v) exit gases from in-line process 
analyzers; 

(vi) stacks or vents to prevent escape of 
sewer gases from domestic waste 
through plumbing traps; 

(vii) refrigeration equipment that is 
consistent with Section 601 through 618 
of Title VI (Stratospheric Ozone 
Protection) of the federal Clean Air Act, 
40 CFR Part 82, and any other 
regulations promulgated by EPA under 
Title VI for stratospheric ozone 
protection, except those units used as or 
in conjunction with air pollution control 
equipment; 
(viii) equipment not vented to the outdoor 
atmosphere with the exception of 
equipment that emits volatile organic 
compounds; 

(ix) equipment that does not emit any 
regulated air pollutants; 

(x) facilities subject only to a requirement 
under 40 CFR Part 63 that are not 
required to be permitted under Section 
.0500 of this Subchapter (This Subpart 
does not apply when a control device is 
used to meet a MACT or GACT 
emission standard.); 

(xi) sources for which there are no 



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applicable requirements and that are at a 

facility not required to be permitted 

under Section .0500 of this Subchapter; 

(xii) animal operations not required to have 

control technology under 15A NCAC 

2D . 1 800 or not required to be permitted 

under Section .0500 of this Subchapter: 

(If an animal operation is required to 

have control technology, it shall be 

required to have a permit under this 

Subchapter. ) 

(2) activities exempted because of size or production rate 

(These activities shall not be included in the permit. 

If the facility is subject to the permitting procedures 

under Section .0500 of this Subchapter, these 

activities shall be listed on the permit application; 

otherwise, these activities shall not be listed on the 

permit application.): 

(A) storage tanks: 

(i) above-ground storage tanks with a 
storage capacity of no more than 1 1 00 
gallons storing organic liquids with a 
true vapor pressure of no more than 10.8 
pounds per square inch absolute at 
70°F;or 
(ii) underground storage tanks with a 
storage capacity of no more than 2500 
gallons storing organic liquids with a 
true vapor pressure of no more than 10.8 
psi absolute at 70 °F; 

(B) combustion and heat transfer equipment 
located at a facility not required to be permitted 
under Section .0500 of this Subchapter: 

(i) fuel combustion equipment, except for 
internal combustion engines, firing 
exclusively kerosene. No. I fijel oil. No. 
2 fuel oil. equivalent unadulterated 
fuels, or a mixture of these fuels or one 
or more of these fuels mixed with 
natural gas or liquified petroleum gas 
with a heat input of less than: 
(I) 10 million BTU per hour for 
which construction, modification, 
or reconstructed commenced 
after June 9. 1989; or 
(II) 30 million BTU per hour for 
which construction, modification, 
or reconstruction commenced 
before June 10, 1989; 
(ii) fuel combustion equipment, except for 
internal combustion engines, firing 
exclusively natural gas or liquified 
petroleum gas or a mixture of these 
fuels with a heat input rating less than 
65 million BTU per hour; 
(iii) space heaters burning waste oil if: 

(1) The heater bums only oil that the 
owner or operator generates or 



(C) 



(D) 



used oil from do-it-yourself oil 

changers who generate used oil 

as household wastes; 
(II) The heater is designed to have a 

maximum capacits of not more 

than 500,000 Btu per hour; and 
(111) The combustion gases from the 

heater are vented to the ambient 

air; 
(iv) emergency use generators and other 
internal combustion engines not 
regulated by rules adopted under Title II 
of the federal Clean Air Act, except 
self-propelled vehicles, that have a rated 
capacity of no more than: 
(I) 310 kilowatts (electric) or 460 

horsepower for natural gas-fired 

engines, 
(II) 830 kilowatts (electric) or 1150 

horsepower for liquified 

petroleum gas-fired engines, 

(III) 270 kilowatts (electric) or 410 
horsepower for diesel-fired or 
kerosene-fired engines, or 

(IV) 21 kilowatts (electric) or 31 
horsepower for gasoline-fired 
engines; 

(v) portable generators and other portable 

equipment with internal combustion 

engines not regulated by rules adopted 

under Title II of the federal Clean Air 

Act, except self-propelled vehicles, that 

operate at the facility no more than a 

combined 350 hours for any 365-day 

period provided the generators or 

engines have a rated capacity of no more 

than 750 kilowatt (electric) or 1100 

horsepower each and provided records 

are maintained to verify the hours of 

operation; 

(vi) peak shaving generators that produce no 

more than 325,000 kilowatt-hours of 

electrical energy for any 12-month 

period provided records are maintained 

to verify' the energy' production on a 

monthly basis and on a 12-month basis; 

gasoline distribution: bulk gasoline plants with 

an average daily throughput of less than 4000 

gallons that is not required to be permitted 

under Section .0500 of this Subchapter; 

processes: 

(i) printing, paint spray booths or other 
painting or coating operations without 
air pollution control devices (water 
wash and filters that are an integral part 
of the paint spray booth are not 
considered air pollution control devices) 
located at a facility whose facility-wide 



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1551 



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actual emissions of: 
(I) Volatile organic compounds are 
less than five tons per year, and 
(II) Photochemically reactive solvent 
emissions under 15A NCAC 2D 
.05 1 8 are less than 30 pounds per 
day; 
provided the facility is not required to 
be permitted under Section .0500 of this 
Subchapter; 
(ii) saw mills that saw no more than 
2.000,000 board feet per year provided 
only green wood is sawed; 
(iii) perchloroethylene dry cleaners that 
consume less than 13.000 pounds (965 
gallons) of perchloroethylene per year; 
(iv) electrostatic dry powder coating 
operations equipped with powder 
recovery including curing ovens with a 
heat input of less than 10,000,000 BTU 
per hour; 
(E) miscellaneous: 

(i) any source without an air pollution 
control device whose emissions would 
not violate any applicable emissions 
standard and whose potential emissions 
of particulate, sulfur dioxide, nitrogen 
oxides, volatile organic compounds, and 
carbon monoxide are each no more than 
five tons per year and whose potential 
emissions of hazardous air pollutants are 
below their lessor quantity cutoff 
except: 

(I) storage tanks, 

(II) fuel combustion equipment, 
excluding fuel combustion 
equipment at facilities required to 
have a permit under Section 
.0500 of this Subchapter, firing 
exclusively kerosene. No. I fuel 
oil. No. 2 fuel oil, equivalent 
unadulterated fuels, natural gas, 
liquified petroleum gas, or a 
mixture of these fuels, 

(III ) space heaters burning waste oil, 

(IV) generators, excluding emergency 
generators, or other non-self- 
propelled internal combustion 
engines, 

(V) bulk gasoline plants, 
(VI) printing, paint spray booths, or 
other painting or coating 
operations, 
(VII) sawmills, 

(VIII) perchloroethylene dry cleaners, 
or 
(IX) electrostatic dry powder coating 
operations. 



provided that the total potential 
emissions of particulate, sulfur dioxide, 
nitrogen oxides, volatile organic 
compounds, and carbon monoxide irom 
the facility are each less than 40 tons per 
year and the total potential emissions of 
all hazardous air pollutants are below 
their lesser quantity cutoff emission 
rates or provided that the facility has an 
air quality permit; 
(ii) any facility without an air pollution 
control device whose actual emissions 
of particulate, sulfiar dioxide, nitrogen 
oxides, volatile organic compounds, or 
carbon monoxide are each less than five 
tons per year, whose potential emissions 
of all hazardous air pollutants are below 
their lesser quantity cutoff emission 
rates, and which is not required to have 
a permit under Section .0500 of this 
Subchapter; 
(iii) any source that only emits hazardous air 
pollutants that are not also a particulate 
or a volatile organic compound and 
whose potential emissions of hazardous 
air pollutants are below their lesser 
quantity cutoff emission rates; or 
(iv) any incinerator covered under Paragraph 
(d) of 15A NCAC 2D. 1201, 
(F) case-by-case exemption: 

(i) for activities located at facilities not 
required to have a permit under Section 
.0500 of this Subchapter, activities that 
the applicant demonstrates to the 
satisfaction of the Director: 
(I) to be negligible in their air 

quality impacts, 
(II) not to have any air pollution 

control device, and 
(III) not to violate any applicable 
emission control standard when 
operating at maximum design 
capacity or maximum operating 
rate, whichever is greater; or 
(ii) for activities located at facilities 
required to have a permit under Section 
.0500 of this Subchapter: activities that 
the applicant demonstrates to the 
satisfaction of the Director: 
(1) to be negligible in their air 

quality impacts, 
(II) not to have any air pollution 

control device, 
(111) not to violate any applicable 
emission control standard when 
operating at maximum design 
capacity or maximum operating 
rate, whichever is greater. 



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(IV) the potential emissions of each 
criteria pollutant is less than five 
tons per year, and 
(V) the potential emissions of each 
hazardous air pollutant is less 
than 1 000 pounds per year 

(c) Because an activity is exempted from being required to 
have a permit does not mean that the activity is exempted from 
any applicable requirement or that the owner or operator of the 
source is exempted from demonstrating compliance with any 
applicable requirement. 

(d) Emissions from stationary source activities identified in 
Paragraph (b) of this Rule shall be included in determining 
compliance with the toxic air pollutant requirements under 15A 
NCAC2D.ll00or2Q.0700. 

(e) The owner or operator of a facility or source claiming an 
exemption under Paragraph (b) of this Rule shall provide the 
Director documentation upon request that the facility or source 
is qualified for that exemption. 

History Note: Filed as a Temporary Adoption Ejf. March 8. 

1994 for a period of 180 days or until the permanent rule is 

effective, whichever is sooner: 

Authority G.S. 143-215. 3(a)(1): 143-215. 107(a)(4): 

143-215.108: 

EffJulyl. 1994: 

.Amended Eff. July 1. 1998: July 1. 199'?: November 1. 1996: 

Temporan' Amendment Eff. March 1_^ 1999. 

•k'k-k'k'k'k-k'k'k'k-k'kif'k'k-k'k'k'k'k 



CHAPTER 3 - MARINE FISHERIES 

SUBCHAPTER 30 - LICENSES, LEASES AND 
FRANCHISES 

SECTION .0400 - STANDARD COMMERCIAL 
LICENSE ELIGIBILITY 

.0401 ELIGIBILITY BOARD 

(a) The Eligibility Board shall sit as a panel of three members 
consisting of the Chairman of the Marine Fisheries Commission, 
the Secretary of the Department of Environment and Natural 
Resources, and the Director of the Division of Marine Fisheries 
or their designees. The Chairman of the Marine Fisheries 
Commission, the Secretary of the Department of Environment 
and Natural Resources, and the Director of the Division of 
Marine Fisheries may each name a designee and an alternate 
designee to serve on the Eligibility Board as their representative 
in their absence. 

(b) The Eligibility Board shall not review an application for 
eligibility without a quorum of the Eligibility Board members or 
designees being present. Two or more members of the 
Eligibility Board or their designees constitute a quorum. 



History Note: Authority G.S. 113-134: 

1998-225, s. 5.2: 

Temporary .Adoption Eff. April I, 1999. 



143B-289.52: S.L 



Rule-making Agency: 

Commission 



.0402 APPLICATION PROCESS 

(a) Application forms for determination of eligibility for the 
Standard Commercial Fishing Licenses Eligibility Pool shall be 

North Carolina Marine Fisheries available at all offices of the Division of Marine Fisheries and 

must be submitted to the Morehead City Office of the Division 
of Marine Fisheries for processing. 

(b) Applications for determination of eligibility for the 
Standard Commercial Fishing License Eligibility Pool for the 
1999-2000 license year will be accepted beginning April L 
1999. All applications received from April I. 1999 through June 
30, 1999. will be reviewed for eligibility for the 1999-2000 



Rule Citation: 15A NCAC 30 .040 1 -.0406 

Effective Date: April 1. 1999 

Findings Reviewed and Approved by: Beecher R. Gray 

Authority for the rule-making: G.S. 113-134: 1438-289.52: 
SL. 1998-225. s.5.2: 

Reason for Proposed Action: The Fisheries Reform Act of 
1997 and its amendments (House Bill 1448) created a new 
license system. This system includes a method of applying for 
a Standard Commercial Fishing License through an Eligibility' 
Pool. These temporary rules establishes the Eligibility Board, 
the method of applying to this Board, and the criteria for 
eligibility. Applicants can start submitting applications on April 
1, 1999. for revicM- by the Board. 

Comment Procedures: Written comments may be submitted 
to the Marine Fisheries Commission, Attention Juanita Gas kill, 
PO Box 769. Morehead City, NC 28557. Comments will be 
accepted through June 1, 1999. 



license year. 

(c) Only one application per individual for determination of 
eligibility for the Standard Commercial Fishing Licenses 
Eligibility Pool will be accepted or may be pending at any one 
time. An applicant may only have one entry in the eligibility 
pool at any one time. 



(d) Individuals who currently hold or are eligible to purchase 
a Standard or Retired Standard Commercial Fishing License 
shall not be eligible to apply for additional Standard Commercial 
Fishing Licenses through the Standard Commercial Fishing 
Licenses Eligibility Pool. 

(ej If an applicant has died or becomes ineligible and is 
subsequently selected from the eligibility pool, that license 
eligibility will automatically revert to the eligibility pool. 

(f) Persons claiming retirement from commercial fishing or 
transferring their Standard Commercial Fishing License may not 
apply for pool eligibility for two years from the date of the last 
transfer, 

(g) Applicants are required to notify the Division of Marine 



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1553 



TEMPOR.4R Y R ULES 



Fisheries within 30 days of a change of address. 

History Note: Authority G.S. 113-134: 143B-289.52: S.L 

1998-225, s. 5.2: 

Temporan- Adoption Eff. April 1_^ 1999. 

.0403 ELIGIBILITY BOARD REVIEW 

(a) The Eligibility Board will meet on the first Wednesday of 
May, 1999. and shall review all applications to determine 
eligibility under criteria set out in 15A NCAC 30 .0404. This 
Board will continue to meet as needed until all applications 
received by the Division of Marine Fisheries by June 30, 1999, 
have been reviewed. 



(b) After determination by the Eligibility Board, applicants 
will be notified in writing as to the applicant's meeting or not 
meeting required eligibility criteria for the Standard Commercial 
Fishing License Eligibility Pool. 

(c) Within 30 days of completion of the review by the 
Eligibility Board of the applications for eligibility, the Marine 
Fisheries Commission shall conduct a Business Meeting to draw 
the 500 applications from the Standard Commercial Fishing 
License Eligibility Pool for issuance of licenses. This selection 
shall be done by a random selection process. 

(d) If less than 500 applications are determined to be eligible 
in the applications submitted from April L, 1999 through June 
30. 1999. the Eligibility Board will meet the First Wednesday of 
each month until the 500 licenses in the Standard Commercial 
Fishing License Eligibility Pool have been issued or until June 
30, 2000. The Marine Fisheries Commission will draw 
applications from the Standard Commercial Fishing License 
Eligibility Pool for issuance of licenses by a random selection 
process at their next regularly scheduled meeting. 

(e) The Eligibility Board shall meet at least quarterly after the 
initial review, unless the 500 openings on the Standard 
Commercial Fishing License Eligibility Pool are not filled in the 
initial review and drawing. Other meetings may be held as 
determined necessary by the Chairman of the Eligibility Board 
based on the number of applications received after June 30. 
1999. to determine eligibility for future years' licenses. 

(f) In subsequent years following the 1999-2000 license year, 
the Marine Fisheries Commission will determine the number for 
selection from the Standard Commercial Fishing License 
Eligibility Pool and draw the applications from the Standard 
Commercial Fishing License Eligibility Pool for issuance of 
licenses by a random selection process at their first scheduled 
meeting following July 1 of each year and as necessary 
throughout the year. 

(g) In subsequent years following the 1999-2000 license year, 
the Eligibility Board shall meet at least quarterly to review 
a pplications. 

History Note: Authority G.S. 113-134: 143B-289.52: S.L. 

1998-225. s. 5.2: 

Temporary' Adoption Eff. .April 1^ 1999. 

.0404 ELIGIBILITY CRITERIA 

In determining eligibility of an application for the Standard 
Commercial Fishing License Eligibility Pool, the Eligibilirs 



Board shall apply the following criteria: 

( 1 ) Involvement in Commercial Fishing: 

(a) Significant involvement in the commercial 
fishing industry for three of the last five years; 
or 

(b) Significant involvement in commercial fishing 
or in the commercial fishing industry prior to 
the last five years; or 

(c) Greater than 50 percent of the applicant's total 
annual income per year for at least three years 
derived from commercial fishing; or 

(d) Greater than 75 percent of the applicant's total 
annual income for three of the last five years 
being derived from commercial fishing; or 

(e) In the case of an applicant who has turned 16 
in the year prior to application, involvement jn 
commercial fishing for two out of the last five 
years prior to reaching the age of 16 with a 
parent, guardian, grandparent or other adult 
family member; or 

(f) Significant family involvement of the 
applicant's family in commercial fishing for 
the last five years. For the purpose of this Sub- 
item, family shall include mother, father, 
brother, sister, spouse, children, grandparents 
or legal guardian. 

For the purposes of this Rule, involvement means persons or 
corporations who are engaged in the actual taking of fish, from 
the waters of the State, or other states, jurisdictions, or federal 
waters, or aD^- licensed dealer who purchases fish at the point of 
landing or their employees at the point of landing. Involvement 
does not include activities such as those who transport fish from 
the point of landing; those who sell or make commercial or 
recreational fishing gear; those who operate bait and tackle 
shops, unless they are engaged jn the actual taking of bait for 
sale; or those who work in fish markets or crab picking 
operations. 

(2) Compliance with Applicable Laws and Regulations: 

(a) The applicant shall not have any licenses, 
endorsements or commercial fishing vessel 
registrations issued by the Division of Marine 
Fisheries or the right to hold such under 
suspension or revocation at the time of 
application or during the eligibility review; or 

(b) If selected for the Standard Commercial 
Fishing License Eligibility Pool, the applicant 
shall become ineligible for the Standard 
Commercial Fishing License Eligibility Pool if 
any licenses, endorsements or registrations or 
the right to hold such issued by the Division of 
Marine Fisheries are suspended or revoked; or 

(c) Four convictions within the last three years or 
the number of convictions which would cause 
suspension or revocation of license, 
endorsement, or registration within the last 
three years shall result in the application being 
denied; or 

(d) A record of habitual violations evidenced by 



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TEMPORAR Y RULES 



eight or more convictions in the last 10 years shall result in the 
application being denied. 

(e) For purposes of eligibility for the Standard 
Commercial Fishing License Eligibility Pool, 
the term convictions shall include but not be 
limited to any conviction for violation of any 
provision of G.S. 113 and any rule 
implementing or authorized by such statutes; 
any conviction for violation of G.S. 76-40 and 
any rule implementing or authorized by such 
statute; any conviction of G.S. 75A and any 
rule implementing or authorized by such 
statutes; any conviction for violation of any 
provision of Article 7 of G.S. 143B and any 
rule implementing or authorized by such 
statutes; any conviction of resist, obstruct, or 
delay involving a Marine Patrol Officer or 
Wildlife Officer under G.S. 14-223; and any 
conviction involving assaultive behavior 
toward a Marine Patrol Officer or other 
governmental official of the Department of 
Environment and Natural Resources or the 
Wildlife Commission. 

(f) Applicants for the Standard Commercial 
Fishing License Eligibility Pool must provide 
certification that the applicant does not have 
four or more marine or estuarine resource 
violations during the previous three years. 

(3) All applicants for the Standard Commercial Fishing 
License Eligibility Pool must meet all other statutory 
eligibility requirements for the Standard Commercial 
Fishing License. 



this eligibility is automatically revoked. 

History- Note: Authority G.S. 113-134: 1438-289.52: S.L. 

199S-225. s. 5.2: 

Temper an' Adoption Eff. April 1_^ 1999. 

.0406 STANDARD COMMERCIAL FISHING 
LICENSE ELIGIBILITY POOL 
CERTIFICATION 

Annual certification to maintain an eligible application in the 
Standard Commercial Fishing License Eligibility Pool will be as 
follows: 

(1) The applicant will be required to certify that the 
information on their original application is correct and 
that they desire to remain in the Standard Commercial 
Fishing License Eligibility Pool. 

(2) A certification form will be provided and mailed to 
the applicant at the last known address by the 
Division. 

(3) This certification, with any changes such as address, 
phone number, or updated fisheries involvement 
information since the last application or certification 
must be notarized and submitted to the Division 
within 12 months of the initial application and 
annually thereafter 

(4) Failure to return certification that application is 
correct or with changes within 30 days will result in 
the application being deleted ft"om the Standard 
Commercial Fishing License Eligibility Pool. 

(5) An applicant that has been deleted ft"om the Standard 
Commercial Fishing License Eligibilirs Pool will 
receive a notice from the Division. 



Histon Note: Authority G.S. 113-134: 113-168. 1: 113-168.2; 
143B-289.52: St. 1998-225. s. 5.2: 
Temporan- Adoption Eff'. .4pril /^ 1999. 



History Note: Authorit\- G.S 113-134: 143B-289.52: SL. 

1998-225. s. 5.2: 

Temporan- Adoption Eff. April /^ 7999. 



.0405 APPLICATION DOCUMENTATION 

Documentation for applications: 

(1) Statements from individuals verifying the applicant's 
involvement must contain the individual's name, 
address and telephone number and must be notarized. 

(2) Proof of income derived from commercial fishing or 
the commercial fishing industry. Proof of this income 
shall be tax records. 

(3) The extent to which the applicant has complied with 
federal and state laws, regulations, and rules relating 
to coastal fishing and protection of the environment. 
Federal compliance will be verified by a notarized 
statement from the applicant that he has complied 
with federal laws. 

(4) All documents required by this Rule must be 
notarized. 

(5) Applications shall be legible and complete or they will 
be returned. 

£6j It is unlawful to submit false statements on 
a pplications or supporting documents. If eligibility is 
based on false information provided by the applicant. 



******************** 

Rule-makjng Agency: Commission for Health Sen-ices 

Rule Citation: 15A NCAC 23 .0202 

Effective Date: February- 24. 1999 

Findings Reviewed and Approved by: Julian Mann. Ill 

Authority for the rule-making: G.S. 130A-389a 

Reason for Proposed Action: The purpose for this proposed 
action is to amend Rule .0202 to cite G.S. 130A-389. which 
establishes the fee amount for a medical examiner ordered 
autopsy, in lieu of stating the exact amount of the fee. Also, at 
the same time the fee was increased (1997-98 Legislative 
Session), revision of the fee reduction schedule for late autopsy 
reports -was taken into consideration. This rule amendment 
changes the time period for a fee reduction for late autopsy 



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reports from 60/120 days to 180 days. The change to the fee 
reduction schedule allows a less burdensome time and monetary 
constraint for pathologists to submit reports. 

Comment Procedures: Comments, statements, data and other 
information may be submitted in writing within 60 days after the 
date of publication of this issue in the North Carolina Register 
Copies of the proposed rules and information packages may be 
obtained by contacting the Office of the Chief Medical Examiner 
(OCME) at (919> 966-2253. Written comments may be 
submitted to Michael Kaufman, Administrator, OCME, Campus 
Box 7580, Chapel Hill, NC 27599-7580. 

CHAPTER 23 - DIVISION OF POSTMORTEM 
MEDICOLEGAL EXAMINATION 

SECTION .0200 - FEES 

.0202 PATHOLOGY FEE 

For each autopsy ordered by a county medical examiner or the 
chief medical examiner, the pathologist shall receive a fee ef 
four hundr e d dollars ($ 4 00.00) as established in G.S. 1 30A-389 
when the autopsy report is received at the Office of the Chief 
Medical Examin e r Examiner, within 60 days from th e dat e of 
autopsy. Th e f ee shall b e thr ee hundr e d fifty dollar s ($350.00) 
e ight hundr e d s e v e ntv' fiv e dollar s ($875.00) for r e ports r e c e iv e d 
aft e r 60 days but within 120 days from th e dat e of autopsy. 
There will be no fee for reports received after the +30 180 day 
period, unless the Chief Medical Examiner determines that the 
delay was beyond the control of the pathologist. The fee shall be 
paid by the state unless the decedent is a legal resident of the 
county in which death occurred, in which event the county of 
residence shall be responsible for the fee. 

History Note: Authority G.S. 130A-389; 130A-393: 

Eff. July 1, 1979: 

Amended Eff. July 1. 1986: July 1, 1984: July 1, 1982: 

Transferred and Recodified from 10 NCAC 11 .0702 Eff. April 

4, 1990: 

Amended Eff. September 1, 1990: 

Temporary Amendment Eff. February' 24, 1 999. 



TITLE 18 - SECRETARY OF STATE 

Rule-making Agency: Secretary of State 

Rule Citation: 18 NCAC 10.0101, .0201. .0301, .0305-.0307. 
.0401:0402, .0501 

Effective Date: February 23. 1999 

Findings Reviewed & Approved by: Beecher R. Gray 

Authority for the rule-making: G.S. 66-58.10 

Reason for Proposed Action: The purpose of these temporary 



rules is to enable administration of the Electronic Commerce 
Act, G.S 66-58.10 etseq. 

Comment Procedures: Persons interested in these rules may 
participate in the Secretary of State's Internet-linked rulemaking 
project. This site is accessible from the Department's homepage 
at www.state.nc.us/secstate. Oral and written comments may 
also be submitted to Scott Templeton, Deputy Secretary of State, 
North Carolina Department of the Secretary of State, R O. Box 
29622. Raleigh, NC 27626-0525, phone (919) 733-5150. Email 
may be sent to ecommiq},mail.secstate. state. nc. us. 

Editors Note: Pursuant to G.S. 150B-2 1. 1(a)(2) the 
proposed temporary rules were published in the NC 
Register, Volume 13, Issue 14 . 

CHAPTER 10 - ELECTRONIC COMMERCE 
SECTION 

SECTION .0100 - GENERAL ADMINISTRATION 

.0101 HOW TO CONTACT THE ELECTRONIC 
COMMERCE SECTION 

The North Carolina Department of the Secretary of State 
administers the Elecfronic Commerce Act. The Secretary of 
State has designated the Electronic Commerce Section to 
administer the Act. The Electronic Commerce Section may be 
contacted by the following means: 

(1) Electronic mail messages (email) are welcome, and 
are frequently the most efficient means of 
communicating with the Electronic Commerce 
Section. Email may be sent to: 



t2j 



01 



t4J 



ecomm(a)mail.secstate. state. nc. us. 
Regular mail may be sent to the Electronic Commerce 
Section at the following address: Electronic 
Commerce Section. Department of the Secretary of 
State. PC Box 29622, Raleigh, NC 27626-0525. 
Up-to-date contact information regarding the 
Electronic Commerce Section is contained on the 
Department of the Secretary of State's Internet site at 
http://www.state.nc.us/secstate. 
Suggestions regarding program adminisfration are 
welcome. Suggestions for improving electronic 
commerce in North Carolina, these Rules, the 
Elecfronic Commerce Section, and the Electronic 
Commerce Act are always welcome. Suggestions 
may be sent to the Elecfronic Commerce Section at 
the addresses given in this Rule. 



History Note: Authority G.S. 66-58. 10: 
Temporary Adoption Eff. February 23, 1999. 

SECTION .0200 - DEFINITIONS 

.0201 APPLICABLE DEFINITIONS 

In addition to the defmitions in the Electronic Commerce Act, 
Article llA of G.S. 66 ( G.S. 66-58.1 et seq.), the following 
apply in these Rules: 



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12} 



id} 
te} 



(1) "Asymmetric Cryptosystem" means a computer-based 
system that employs two different but mathematically 
related keys. The keys are computer-generated codes 
that have the following characteristics: 

(a) either key can be used to electronically sign 
and/or encrypt data, such that only the other 
key in that key pair js capable of yerifying the 
electronic signature and/or decrypting the 
signed data; and 

(b) the keys have the property that, knowing one 
key, it is computationally infeasible to discover 
the other key. 

"Certificate" means a record which: 

(a) identifies the certification authority issuing it; 

names or identifies its subscriber; 

contains the subscriber's public key; 

identifies its period of validity; 

is electronically signed by the certification 

authority issuing it; and 

conforms to the ITU/ISO X.509 Version 3 

standards or other standards accepted under 

these Rules. 
(3) "Certification Practice Statement" means 
documentation of the practices, procedures and 
controls employed by a certification authority. A 
Certification Practice Statement shall contain, at a 
minimum, detailed discussions of the following 
topics: 

(a) technical security controls. including 
cryptographic modules and management; 

(b) physical security controls; 

(c) procedural security controls; 

(d) personnel security controls; 

(e) repository obligations , including registration 
management. subscriber information 
protection. and certificate revocation 
management; and 

(f) financial responsibility. 

£4} "ITU/ISO X.509 Version 3 standards" means version 
three of the X.509 standards promulgated by the 
International Telecommunications Union and the 
International Organization for Standardization. 

(5) "Key Pair" means the two keys in an asymmetric 
cryptosystem. 

(6) "Private Key" means the key of a key pair that is to be 
kept confidential by the subscriber. 

(7) "Public Key" means the key of a key pair that the 
subscriber may publish. 

(8) "Public Key Cryptography" means a type of 
cryptographic technology that employs an asymmetric 
cryptosystem. 

(9) "Subscriber" means the person to whom a certificate 
is issued. 

Histon> Note: Authority^ G.S. 66-58. 10(a)(1): 
Temporan' Adoption Eff. Fehruan' 23. 1999. 

SECTION .0300 - LICENSING, TECHNOLOGIES, AND 



SUBSCRIBER IDENTIFICATION 

.0301 LICENSING STANDARDS - PUBLIC KEY 
CRYPTOGRAPHY 

(a) To be considered for licensure under this Section, a 
certification authority' shall utilize certificate-based public key 
cryptography. 

(b) Any applicant seeking licensure must demonstrate 
compliance with the ITU/ISO X.509 Version 3 standards in its 
Certification Practice Statement. 

(c) To request licensure, a certification authority shall provide 
the Electronic Commerce Section with a copy of its current 
Certification Practice Statement. The certification authority 
shall also submit an unqualified performance audit performed by 
a Certified Public Accountant, in accordance with standards set 
in the most current version of the American Institute of Certified 
Public Accountants ( AICPA) Statement on Auditing Standards 
No. 70 (SAS 70) "Reports on the Processing of Service 
Transactions by Service Organizations." to evidence that the 
certification authority's practices and policies are consistent with 
the requirements of the ITU/ISO X.509 Version 3 standards, the 
certification authority's Certification Practice Statement and the 
requirements of these Rules. 

(1) In order to be licensed, a certification authority that 
has been jn operation for one year or less shall 
undergo a SAS 70 Type One audit ^ A Report of 
Policies and Procedures Placed in Operation- 
receiving an unqualified opinion. 

(2) In order to be licensed, a certification authority that 
has been in operation for longer than one year shall 
undergo a SAS 70 Type Two audit - A Report of 
Policies and Procedures Placed in Operation and Test 
of Operating Effectiveness, receiving an unqualified 
opinion. 

(d) A certification authority shall adhere to jts Certification 
Practice Statement. If a certification authority modifies jts 
Certification Practice Statement, it shall provide an updated copy 
of the Certification Practice Statement to the Electronic 
Commerce Section as soon as is practicable, and no later than 
the date the updated Certification Practice Statement is put into 
operation. As a condition of continued licensure, the Electronic 
Commerce Section may require the certification authority to 
undergo an audit to document compliance with its updated 
Certification Practice Statement, and to document continuing 
compliance with the ITU/ISO X.509 Version 3 standards and 
these Rules. 

te) The ITU/ISO X.509 Version 3 standards may be obtained 
by downloading ft-om the ITU Internet site at 
http://www.itu. int/itudoc/itu-t^rec/x/x500up/x509_27505. html. 
As of February 8. 1999. the ITU requires credit card prepayment 
of 20 Swiss Francs (approximately US twenty eight dollars and 
thirty cents ($28.30) for this publication. The AICPA SAS 70 
standards may be obtained by writing for Publication Number 
060441 (SAS 70) to AICPA Order Department. PO Box 2209. 
Jersey City. NJ 07303-2209. As of February 8. 1999. AICPA 
requires prepayment of nine dollars and twenty five cents 
($9.25) plus three dollars ($3.00) shipping twelve dollars and 
ninety five cents ($12.95 total) to nonmembers for this 



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publication. Orders may also be placed using credit card 
prepayment by calling AICPA at 888.777.7077. The X. 509 and 
SAS 70 documents may also be reyiewed at the Electronic 
Commerce Section office. 

History Note: Authority G.S. 66-58. 10(a)(2): 
Temporary' Adoption Eff. February 23. 1999. 

.0305 ALTERNATE TECHNOLOGIES AND 
PROVISIONAL LICENSING 

(a) Alternate Technologies: Any person may petition the 
Electronic Commerce Section to initiate rulemaking to recognize 
a technology not currently recognized under these Rules. The 
petition shall be made pursuant to G.S. 150B-20. G.S. 150B-20 
and other statutes can be yiewed at the North Carolina General 
Assembly's Internet site at http://www.ncga.state.nc.us/. In 
addition to the requirements of G.S. 150B-20. in order to enable 
the Electronic Commerce Section to best consider the petition. 
the petitioner should also proyide a detailed explanation of the 
proposed technology, and a discussion of how the technology 
complies with the substantiye intent of the Electronic Commerce 
Act. 

(b) Provisional Licensing: If the Electronic Commerce 
Section accepts the proposed technology for rulemaking, it may. 
but is not required to. enter into provisional licensing agreements 
with persons utilizing the proposed technology and desiring 
licensure during the time before the new rules are eflFective. The 
terms and conditions of any provisional licensing agreement 
shall be substantially consistent with these Rules. 

History Note: Authority G.S. 66-58. 10(a)(2); 
Temporary' Adoption Eff. February 23. 1999. 

.0306 SUBSCRIBER IDENTIFICATION 

(a) In confirming that a prospective subscriber is the person 
to be listed in a certificate to be issued, a licensed certification 
authority shall make a reasonable inquiry in light of: 

(1) any statements made by the certification authority 
regarding the reliability or reliance limit of the 
certificate; and 

(2) any recommended uses or applications for the 
certificate. 

(bj A certification authority shall be presumed to have 
confirmed that the prospective subscriber is the person to be 
listed in a certificate where: 

( 1) the certification authority has been presented 
identification documents consisting of at least one of 
the following: 

(A) an identification document issued by or under 
the authority of the United States or a State of 
the United States, or such similar identification 
document issued under the authority of another 
country; 

(B) a driver's license issued by the United States or 
a State of the United States; or 

(C) a personal identification card issued by the 
United States or a State of the United States; 
and 



(2) the certification authority has reviewed and accepted 
the identification document of the subscriber. 

History Note: A uthority G. S. 66-58. 1 Ola) (2) : 
Temporary Adoption Eff. February 23. 1999 . 

.0307 LICENSING FEES, BONDING AND RENEWAL 

(a) A certification authority shall pay an initial licensing fee 
in the sum of two thousand dollars ($2000). 

(b) As a precondition of licensure, a certification authority 
shall obtain a bond issued by a surety company authorized to do 
business in this State. A copy of the bond required by this Rule 
shall be filed with the Electronic Commerce Section prior to 
licensure. The amount of the bond shall not be less than one 
hundred thousand dollars ($100.000) and shall be in favor of the 
State of North Carolina for any penalties assessed by the 
Electronic Commerce Section pursuant to these Rules and for 
the benefit of any person who may have a claim for relief against 
the certification authority for any losses resulting from the 
certification authority's conduct of any activities subject to the 
Electronic Commerce Act or arising out of a violation of the 
Electronic Commerce act or any rule promulgated thereunder. 
The Electronic Commerce Section shall cancel the license of a 
certification authority when the bond required under this Rule is 
cancelled or revoked by the surety unless a sufficient 
replacement bond is obtained and the requirements of this Rule 
are met by the certification authority. 

(c) A license issued by the Electronic Commerce Section 
pursuant to this Section shall expire one year after its effective 
date unless timely renewed. 

(d) A licensee seeking renewal shall meet the conditions for 
initial licensure set forth in this Rule, except that the certification 
authority shall undergo a SAS 70 Type Two audit - a Report of 
Policies and Procedures Placed in Operation and Test of 
Operating Effectiveness, receiving an unqualified opinion. 
Request for license renewal shall be made not less than 30 days 
prior to expiration of the current license. An application for 
licensure renewal by a licensed certification authority shall be 
accompanied by a renewal fee of two thousand dollars ($2000). 

History Note: Authority G.S. 66-58.3; 66-58.10; 
Temporary' Adoption Eff February 23, 1999. 

SECTION .0400 - SANCTIONS AND ENFORCEMENT 

.0401 CIVIL SANCTIONS 

(a) If upon investigation, the Electronic Commerce Section 
finds that a certification authority has violated any provision of 
the Electronic Commerce Act or these Rules, or finds that the 
certification authority has had a license revoked or suspended in 
any other jurisdiction, the Electronic Commerce Section may 
revoke or suspend any license issued under the Electronic 
Commerce Act and these Rules. The revocation or suspension 
may be in addition to any civil monetary penalty issued against 
the certification authority. As a condition of license 
reinstatement following a period of suspension, the Electronic 
Commerce Section may require that the certification authority 
submit updated or additional documentation or assurances 



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regarding its operations. 

(b) If upon investigation, the Electronic Commerce Section 
finds that a certification authority lias violated any provision of 
the Electronic Commerce Act or these Rules, the Electronic 
Commerce Section mav assess a civil monetary penalty of not 
more than five thousand dollars (S5.000) for each violation. The 
civil monetary penalty ma\ be in addition to any revocation or 
suspension of the certification authority's license. As a 
condition of continued licensure following assessment of a civil 
monetary penalty, the Electronic Commerce Section ma\ require 
that the certification authority submit updated or additional 
documentation or assurances regarding its operations. 

(c) Adjustment factors. In determining the length of any 
suspension or amount of any civil monetary penalty, the 
Electronic Commerce Section shall consider: 

(1) The organizational size of the certification authority 
cited for violating the provisions of the Electronic 
Commerce Act; 

(2) The good faith of the certification authority cited, 
including but not limited to any procedures or 
processes implemented by the violator to prevent the 
violation fi-om recurring; 

(3) The gravity of the violation; 

(4) The prior record of the violator jn comphing or 
failing to comply with the Electronic Commerce Act 
or these Rules; and 

(5) The risk of harm caused by the violation. 

(d) Continuing Violations. After the receipt of notice of 
a violation, if any certification authority willfully continues to 
violate bv action or inaction the Electronic Commerce Act or 
these Rules, each day or transaction the violation continues or is 
repeated may be considered a separate violation. 

(e) Civil Sanction Notification. When the Electronic 
Commerce Section determines that a civil sanction shall be 
assessed, the Electronic Commerce Section shall notify the 
certification authority' of the following information by electronic 
mai l, if possible, and by any means permitted under Rule 4 of 
the North Carolina Rules of Civil Procedure: 

(1) Tlie nature of the violation; 

(2) The civil sanction imposed; 

(3) That the civil sanction will become final unless within 
15 days after receiving notice of the violation the 
certification authority either: 

(A) takes exception to the civil sanction assessment 
by filing a contested case petition with the 
Office of Administrative Hearings; or 

(B) submits a written request for the reduction of 
the sanction; and 

(4) The procedure for taking exception to the violation or 
seeking the reduction of the sanction. 

(0 Civil Sanction Finality. The certification authority must 
file a contested case petition pursuant to G.S. 1 50B-23 or submit 
a written request for the reduction of the sanction within 1 5 days 
of receipt of the notice of the civil sanction assessment or the 
assessment shall become final. Notice shall be deemed received 
at the time of service by any method permitted under Rule 4 of 
the North Carolina Rules of Civil Procedure. 

(g) Request for Reduction of Civil Sanction. A certification 



authority that admits a cited violation but wishes to seek 
reduction of the length of a suspension or amount of a civil 
monetary penalty mav request reduction of the civil sanction. 

(1) Any request for reduction of a civil sanction shall be 
submitted to the Electronic Commerce Section in 
writing and must include a written statement 
supporting the reduction request. Requests for 
reduction of a sanction are solely for the purpose of 
allowing the certification authority to contest the 
reasonableness of the civil sanction arising under 
Paragraph (e) of this Rule. The certification authority 
should not attempt to contest the existence of a 
violation or raise questions of law in the request for 
reduction of the sanction. 

(2) The Electronic Commerce Section shall determine if 
the assessed sanction is to be reduced pursuant to a 
reduction request and shall notify the certification 
authority of its decision in writing. 

(3) If the Electronic Commerce Section determines that 
the reduction request raises issues of fact or questions 
of law, the Electronic Commerce Section mav decline 
to consider the reduction request, and shall notify the 
certification authority by certified or registered mail 
that jt must file a contested case petition with the 
Office of Administrative Hearings in order to preserve 
its claim and legal rights. The certification authority 
must file a contested case petition with the Office of 
Administrative Hearings within 15 davs of receipt of 
notice or the sanction assessed shall be final. 

(4) If the reduction request does not raise issues of fact or 
questions of law, the Electronic Commerce Section 
shall determine if the assessed sanction is to be 
reduced, and shall notify the certification authority of 
its decision in writing by electronic mail, if possible. 
and by any other means permitted under Rule 4 of the 
North Carolina Rules of Civil Procedure. In the event 
the Electronic Commerce Section denies the reduction 
request, or grants the reduction request in an amount 
unacceptable to the certification authority, the 
certification authority must file a contested case 
petition with the Office of Administrative Hearings 
within 15 days of receipt of notice of the Electronic 
Commerce Section's decision, or the decision shall 
become the final decision. Notice shall be deemed 
received at the time of service by any method 
permitted under Rule 4 of the North Carolina Rules of 
Civil Procedure. 

(h) Payment. Any civil monetary penalty shall be due within 
60 days of the date of the initial assessment of the penalty, 
except that jf the certification authority files a contested case 
petition pursuant to G.S. 1 50B-23 or submits a written request 
for reduction of the penalty, the penalty shall be due within 60 
days of the date of the final decision. The penalty shall be paid 
with cash or certified funds by personal delivery or certified mail 
to the Electronic Commerce Section. In the event the 
certification authority fails to pay the penalty assessed within the 
time periods set forth in this Rule, the Electronic Commerce 
Section may collect the amount of the penalty from the bond 



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required by these Rules. 

History Note: A uthority G. S. 66-58. 6: 66-58. 1 0: 
Temporary Adoption Eff. February 23, 1999. 

.0402 CRIMINAL PENALTIES AND INJUNCTIVE 
RELIEF 

The Department of the Secretary of State has the authority to 
investigate, prosecute and otherwise pursue criminal penalties 
for violations of the Electronic Commerce Act, pursuant to G.S. 
66-58.8. or injunctive relief pursuant to G.S. 66-58.6. 

History Note: Authority G.S. 66-58.6: 66-58.8: 66-58. 10: 
Temporary Adoption Eff. February 23, 1999. 



SECTION .0500 - RECIPROCITY 



.0501 



RECIPROCAL AGREEMENTS AND 
LICENSURE BY RECIPROCITY 

(a) The Electronic Commerce Section may enter 



(e) Any certification authority that obtains a reciprocal license 
under these Rules shall be obligated to inform the Electronic 
Commerce Section in writing of any civil or criminal proceeding 
that arises from or relates to the certification authority's license 
or any disciplinary action commenced against the certification 
authority in any other jurisdiction within 10 days of notice of the 
proceeding or action. 

History Note: Authority G.S. 66-58. 3: 66-58. 6: 66-58. 7: 66- 

58.8: 66-58.10: 66.58.11: 

Temporary' .Adoption Eff. February 23. 1999. 



TITLE 25 - OFFICE OF STATE PERSONNEL 

Rule-making Agency: State Personnel Commission 

Rule Citation: 25 NCAC IB. 0414. .0434: IC .0214: U .0506. 
.0603 



mto 



reciprocal licensing agreements with other jurisdictions that have Effective Date: February' 18 1999 
adopted electronic commerce laws similar in nature and intent to 
the Electronic Commerce Act. 

(b) Certification authorities licensed by other jurisdictions 
may request licensure by reciprocity with the North Carolina 
Electronic Commerce Section, provided that the jurisdiction in 



which the certification authority is already licensed has a 
reciprocal agreement in effect with the Elecfronic Commerce 
Section. 

(c) To seek reciprocal licensure in North Carolina, 
certification authorities that are licensed by other jurisdictions 
with which the Electronic Commerce Section has entered 
reciprocal agreements shall do the following: 

(1 ) Pay the licensing fee as described in these Rules: 

(2) Provide the Electronic Commerce Section with 
evidence of licensure in good standing from the other 
licensing jurisdiction; 

(3) Provide the Electronic Commerce Section with a 
complete copy of the licensing application that led to 
the certification authority becoming licensed m the 
reciprocal jurisdiction, including any amendments 
thereto; 

(4) Provide full disclosure of any former, current or 
proposed disciplinary action or criminal proceeding 
arising from or related to the certification authority's 
license or activities as a certification authority; 

(5) Provide a complete history of licensure in all other 
jurisdictions, whether continuous or disrupted, and if 
disrupted the length of the disruption and basis 
therefore; and 

(6) Provide any additional information as required by the 
Electronic Commerce Section. 

(d) The Electronic Commerce Section shall have the power to 
impose civil sanctions against a reciprocal licensee on the same 
basis that the Elecfronic Commerce Section can impose civil 
sanction against a certification authority license otherwise 
issued, or upon finding that the certification authority has had a 
license revoked or suspended in another jurisdiction. 



Findings Reviewed and Approved by: Beecher R. Gray 

Authority for the rule-making: G.S. 126-lA: 126-4(9&11): 
126-7.1: 126-7.2: 126-16: 126-34: 126-34.1: 126-36: 126-36.1: 
126-38 

Reason for Proposed Action: Legislation passed by the 
General Assembly, S.B. 78, effective August 15, 1998, adds a 
new grounds for a contested case to those listed in G.S. 126- 
34.1. This new ground for filing a contested case has an 
effective date prior to ratification. This bill was ratified on 
September 2. 1998. There are already cases pending before the 
State Personnel Commission which are covered by this statute 
and it is imperative that rules be in place as soon as possible to 
effectuate the intent of the statute. Adherence to the notice and 
hearing requirements for the adoption of the proposed rules 
submitted would potentially delay or defeat justice in grievance 
situations. 

Comment Procedures: Written comments may be submitted 
to Delores J. Stanley, Office of State Personnel, 116 West Jones 
Street, Raleigh, North Carolina 27603. 

CHAPTER 1 - OFFICE OF STATE PERSONNEL 

SUBCHAPTER IB - STATE PERSONNEL 
COMMISSION 

SECTION .0400 - APPEAL TO COMMISSION 

.0414 SITUATIONS IN WHICH ATTORNEY FEES 
MAY BE AWARDED 

Attorney's fees may be awarded by the Commission only in 
the following situations: 

(1) the grievant is reinstated in accordance with Rule 



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.0428 of this Section; 

(2) the grievant is awarded baci< pa\' from either a 
demotion or a dismissal, without regard to whether the 
grievant has been reinstated; 

(3) the grievant is determined, by the Commission or by 
the agency's internal grievance procedure, to have 
been discriminated against or harassed in violation of 
G.S. 126-16 or 126-36; 

(4) the grievant is awarded back pay as the result of a 
successful grievance alleging a violation of G.S. 126- 
7.1; 

(5) the grievant is the prevailing party in a final appeal of 
a Commission decision; 

(6) any combination of the situations listed in this Rule. 
Attorney's fees may be awarded when any of the above 

situations occur, either within the agency internal grievance 
procedure, in an appeal to the State Personnel Commission, or 
in an appeal of a State Personnel Commission decision. 

History Note: Authority G.S. J 26-4(11): 126-7.1: 
Eff. September 1 , 1987: ' 
Amended Eff. March 1. 1996: July 1. 1989. 
Temporary' Amendment Eff. February 18, 1999. 

.0434 DISCRIMINATION 

In those cases in which the Personnel Commission finds an act 
of discrimination or unlawful workplace harassment prohibited 
by G.S. 126-16, G.S. 126-36 orG.S. 126-36.1. the commission 
may order reinstatement, back pay. transfer, promotion or other 
appropriate remed\. The commission shall also have the 
authority in such cases to order other corrective remedies to 
ensure that the same or similar discriminatory acts do not recur. 

History Note: Authority' G.S 126-4(9): 126-16: 126-36: 126- 

36.1: 

Eff September 1. 1987; 

Temporary' Amendment Eff. Februan,' 18. 1999. 

SUBCHAPTER IC - PERSONNEL ADMINISTRATION 



SECTION .0200 



GENERAL EMPLOYMENT 
POLICIES 



.0214 UNLAWFUL WORKPLACE HARASSMENT 

(a) Purpose. The purpose of this policy is to establish that the 
State of North Carolina prohibits in any form th e sexual 
imlawfiil workplace harassment of state employees or applicants, 
and to require that every agency subject to the State Personnel 
Act establishes policies and programs to ensure that work sites 
are free of s e xual unlawfijl workplace harassment. 

(b) S e xual Unlawful workplace harassment is defined as 
d e lib e rat e , unsolicited, and unwelcome v e rba l and/or physical 
speech or conduct based upon race, sex, creed, religion, national 
origin, age, color, or handicapping condition as defined by G.S. 
168A-3 that creates a hostile work environment or circumstances 
involving quid pro quo: of a se xual natur e or with s e xual 
implication s by a s up e rvisor or co worker which : 

f-H has or may hav e dir e ct e mployment con se qu e nc es 






m 



r e sulting from th e acc e ptance or r e j e ction of such 

conduct; or 

cr e at es an intimidating, hostil e or off e nsive working 

e nvironm e nt; or 

int e rf e r es with an individual's work p e rformanc e . 

Hostile Work Environment is one that both a 

reasonable person would find hostile or abusive and 

one that the particular person who is the object of the 

harassment perceives to be hostile or abusive. Hostile 

work environment is determined by looked at all of 

the circumstances, including the frequency of the 

allegedly harassing conduct, its severity, whether it is 

physical K threatening or humiliating, and whether it 

unreasonably interferes with an employee's work 

performance. 

Quid Pro Quo harassment consists of unwelcome 

sexual advances, requests for sexual favors, or other 

verbal or physical conduct when: 

(A) submission to such conduct is made either 

explicitly or implicitly a term or condition of an 

individual's emplo\ment. or. 

submission to or rejection of such conduct by 

an individual js used as the basis for 

such 



m 



employment 
individual. 



decisions affecting 



(3) Retaliation is adverse action taken because of 
opposition to unlawful workplace harassment. 

(c) Policy. The policy of the State of North Carolina is that no 
state employee may engage in conduct that falls under the 
definition of s e xual unlawful workplace harassment indicated in 
Paragraph (b) of this Rule. No personnel decisions shall be 
made on the basis of a granting or d e nial of s e xual favors upon 
race, sex, creed, religion, national origin, age, color, or 
handicapping condition as defined by G.S. 168A-3 . All 
employees are guaranteed the right to work in an environment 
free from se xual unlawful workplace harassm e nt, harassment 
and retaliation. Sexual Unlawful workplace harassment shall 
hereforth be deemed a form of sex discrimination prohibited by 
G.S. 126 16. G.S. 126-16 and G.S. 126-36. 

(d) Grievances. An\ current or former state employee who 
feels he/she has been se xually hara sse d the victim of unlaw ful 
workplace harassment in violation of this policy and G.S. 1 26- 1 6 
and G.S. 126-36 may file a grievance through the departmental 
grievance procedure. Filing such a wTitten complaint shall be a 
prerequisite to any further appeal to the State Personnel 
Commission regarding unlawful workplace harassment. After 
the employee's written complaint is submitted to the department 
or agency, the department or agency shall have 60 days within 
which to consider the complaint and take appropriate remedial 
action, if an\. Consistent with G.S. 126-34. G.S. 126-34.1. 
G.S. 126-36 and G.S. 126-36.1 any applicant for stat e 
emploxTnent or any current or former state emplo> ee who feels 
that he/she has been s e xually hara s s e d subjected to unlawful 
workplace harassment may appeal directly to the State Personnel 
Commission (such appeal consisting of a contested case hearing 
under Ch. 150B and a decision by the Personnel Commission) 
only after submitting a written complaint and waiting 60 days 
from the submission of the complaint, without first following th e 



13:18 



NORTH CAROLINA REGISTER 



March 15, 1999 



1561 



TEMPORAR Y RULES 



d e partmental grievance proc e dure. 

(e) Departmental Plans. Each department head or university 
chancellor shall include as a supplement to the Affirmative 
Action Plan a plan setting forth the steps to be taken to prevent 
and correct s e xual unlawful workplace harassment. Each 
department or university' shall submit such a plan to the Office 
of State Personnel for review, technical assistance, and approval 
by the Director of State Personnel. Each plan on s e xual 
unlawful workplace harassment shall, at the minimum, include: 

(1) publishing and disseminating a policy statement 
establishing that s e xual unlawful workplace 
harassment of employees and applicants is prohibited; 

(2) establishment of internal procedure to handle 
complaints of sexual unlawful workplace harassment. 
This procedure shall provide prompt investigation and 
resolution of complaints within the department or 
university and shall offer the employee recourse other 
than through the immediate supervisor; 

(3) utilization of training and other methods to prevent 
s e xual unlawfiil workplace harassment; 

(4) stating that the department will, in allegations of 
se xual unlawful workplace harassment, review the 
entire record and the totality of the circumstances, to 
determine whether the alleged conduct constitutes 
se xual unlawful workplace harassment; 

(5) development of appropriate disciplinary actions for 
conduct determined to constitute s e xual unlawful 
workplace harassment, to be implemented on a case 
by case basis on the facts of each complaint; 

(6) prohibition of internal interference, coercion, restraint 
or reprisal against any person complaining of alleged 
se xual unlawful workplace harassment; 

(7) notification to all employees that a complaint or 
allegation of s e xual unlawful workplace harassment 
may must be filed within the department or agency er 
may b e fil e d with th e Stat e P e rsonn e l Commission, at 
th e e l e ction of th e employee, and that the agency or 
department has 60 days to take appropriate action, if 
any, in response to the complaint prior to the filing of 
a complaint of unlawful workplace harassment with 
the State Personnel Commission. 

History Note: Authorit\' G.S. 126-4: 126-16: 126-1 ', 126-36: 

126-36.1: 

Ejf. December I. 1980: 

Amended Eff. November 1. 1988: April 1. 1983: 

Temporan^ Amendment Eff. February 18, 1999. 

SUBCHAPTER IJ - EMPLOYEE RELATIONS 

SECTION .0500 - WORK SCHEDULE 

.0506 DISCRIMINATION 

(a) A state employee has the right of direct appeal to the 
Commission has the option of using the grievance procedure 
established within the employee's agency if the employee so 
desires. If an employee elects to utilize the agency grievance 
procedure, the employee must appeal an alleged act of 



discrimination within the time frames set by the agency 
grievance procedure. An employee who chooses to bypass the 
agency's internal grievance procedure and appeal directly to the 
Commission must do so within 30 calendar days of notice the 
alleged discriminatory action. 

(b) An employee who alleges s e xual unlawful workplace 
harassment and elects to utilize the agency grievance procedure, 
shall have the right to bypass any step in the agency grievance 
procedure or alternative dispute resolution procedure involving 
discussions with or review by the alleged harasser. An employee 
who has a unlawful workplace harassment complaint must 
submit an unlawful workplace harassment complaint in writing 
to the agency or department. The agency or department has 60 
days to take appropriate action, if any, in response to the 
complaint. After the agency or department has had 60 days in 
which to take appropriate action, if any, in response to the 
complaint of unlawful workplace harassment, the employee may 
file a complaint of unlawful workplace harassment with the State 
Personnel Commission within 30 days of the 60th day of the 
period of time which the agency or department is given to 
consider the unlawful workplace harassment complaint and take 
appropriate action, if any. 

History^ Note: Authority G.S. 126-4(9): 126-4(17): 126-7.2: 

126-16: 126-34.1: 126-34.2: 126-38: 

Eff. Februaiy 1. 1976: 

Amended Eff. December 1, 1995: 

Temporary Amendment Eff. February 18, 1999. 

SECTION .0600 - COMPETITIVE SERVICE 

.0603 APPEALS 

(a) A career employee who has been demoted, suspended or 
dismissed shall have 15 calendar days from the date of his 
receipt of written notice of such action to file an appeal with his 
department/university grievance procedure. Grievances which 
do not allege discrimination must follow the department or 
university grievance procedure. An appeal to the State 
Personnel Commission of a final departmental or university 
decision must be filed with the Office of Administrative 
Hearings in accordance with G.S. 150B-23 and within 30 
calendar days of receipt of the final agency decision. Grievances 
which allege unlawful workplace harassment must be submitted 
in writing to the agency or department and the agency or 
department must be given 60 days in which to take appropriate 
remedial action, if any. An appeal to the State Personnel 
Commission of unlawful workplace harassment must be filed 
with the Office of Administrative Hearings in accordance with 
G.S. 150B-23 and within 30 calendar days of the 60th day of the 
period given to the agency to consider the unlawful workplace 
harassment complaint. 

(b) Grievances which allege discrimination not including 
unlawful workplace harassment may. at the election of the 
employee, proceed through the department or university 
procedure or proceed directly to the State Personnel Commission 
(SPC) for a hearing by the Office of Adminisfrative Hearings 
(OAH) and a decision by the SPC. A direct appeal to the SPC 
(such appeal involving a contested case hearing by the OAH and 



1562 



NORTH CAROLINA REGISTER 



March 15, 1999 



13:18 



TEMPOR.4RY RULES 



a recommended decision by that agency to the SPC) alleging 
discrimination not including unlawful workplace harassment 
must be filed in accordance with G.S. 1 50B-23 and must be filed 
within 30 calendar days of receipt of notice of the alleged 
discriminatory act. 

(c) Grievances filed on an untimely basis (see G.S. 126-35, 
G.S. 126-36 and G.S. 126-38) must be dismissed. Allegations 
of discrimination raised more than 30 calendar days after receipt 
of notice of the occurrence of the alleged discriminatory act must 
be dismissed. Grievances alleging unlawful workplace 
harassment raised more than 30 calendar days after the 60th day 
of the 60 day time period given to the agency to consider an 
unlawful workplace harassment complaint. 

HislonNote: Authority G.S. 126-1 A: 126-35; 126-56: 126- 

38: 150B. Article 3: 150B-23: 

Ejf. Februaiy 1 . 1976: 

Amended Eff. March I, 1994: .April 1. 1989: December 1. 1984: 

October 1. 1984: 

Temporan' .Amendment Eff. February 18. 1999. 



13:18 NORTH CAROLINA REGISTER March 15, 1999 1563 



RULES REVIEW COMMISSION 



1 his Section contains the agenda for the next meeting of the Rules Review Commission on Thursday, March 18, 1999. 10:00 
a.m. . at 1 307 Glenwood Ave., Assembly Room, Raleigh. NC. Anyone wishing to submit written comment on any rule before 
the Commission should submit those comments to the RRC staff, the agency, and the individual Commissioners by Monday, 
March 15, 1999, at 5:00 p.m. Specific instructions and addresses may be obtained from the Rules Review Commission at 9 1 9- 
733-272 1 . Anyone wishing to address the Commission should notify the RRC staff and the agency at least 24 hours prior to 
the meeting. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Teresa L. Smallwood, Vice Chairman 
John Arrowood 

Laura Devan 

Jim Funderburke 

David Twiddy 



Appointed by House 

Paul Powell, Chairman 

Anita White, 2"" Vice Chairman 

Mark Garside 

Steve Rader 

George Robinson 



RULES REVIEW COMMISSION MEETING DATES 



March 18. 1999 
April 15. 1999 
May 20, 1999 
June 17, 1999 
July 15. 1999 



August 19, 1999 
September 1 6, 1 999 
October 21, 1999 
November 18, 1999 
December 16. 1999 



LOG OF FILINGS 
RULES SUBMITTED: JANUARY 20, 1999 THROUGH FEBRUARY 20, 1999 



AGENCY/DIVISION 



RILE NAME 



RILE 



ACTION 



DENRAVILDLIFE RESOURCES COMMISSION 

Safety Equipment 



15NCAC 1 OF .0201 



TRANSPORTATION, DEPARTMENT OF/DIVISION OF HIGHWAYS 

Fees 19NCAC2E.0221 

Contracts with the Department 1 9 NC AC 2E .0222 

STATE BOARDS/COSMETIC ART EXAMINERS, STATE BOARD OF 

Teacher/Student Ratio 2 1 NC AC 1 4G .0 1 1 3 

Effect on Student-Teacher Ratio 2 1 NC AC 1 4L .02 1 

Fee 21 NCAC 14L.0214 



Repeal 



Amend 
Amend 



Amend 

Amend 
Amend 



RULES REVIEW COMMISSION 

February 18, 1999 
MINUTES 

The Rules Review Commission met on February 18, 1999, in the West Wing Conference Room of the Methodist Building, 1307 
Glenwood Avenue, Raleigh, North Carolina. Commissioners in attendance were Chairman Paul Powell, David R. Twiddy, Steven 
P. Rader, R. Palmer Sugg, Jim R. Funderburk, Teresa L. Smallwood, Laura Devan, John Arrowood, Mark P. Garside, and George 
S. Robinson. 



1564 



NORTH CAROLINA REGISTER 



March 15, 1999 



13:18 



RULES REVIEW COMMISSION 



Staff members present were: Joseph J. DeLuca. Staff Director; Bobby Bryan. Rules Review Specialist; and Sandy Webster. 



The following people attended: 

Shamese Ransome 
David Work 
Warren Plonk 
Valerie Chaffm 
Tom West 
Denise Stanford 
Tara M inker 



DHHS/Social Services Commission 

NC Board of Pharmacy 

State Budget 

Himton & Williams 

Poyner & Spruill 

NC Board of Pharmacy 

DHHS/Office of Juvenile Justice 



APPROVAL OF MINUTES 

The meeting was called to order at 10:02 a.m. with Chairman Powell presiding. He asked for any discussion, comments, or 
corrections concerning the minutes of the January 21. 1999 meeting. There being none, the minutes were approved. 

FOLLOW-UP MATTERS 

4 NCAC 3 B .01 1 . .0 1 02, and .0 1 03 : COMMERCE/Banking Commission ^ No action was taken on these rules at the request of the 
agency. 

4 NCAC 3H .0002: COMMERCE/Banking Commission - No action was taken on this rule at the request of the agency. 

10 NCAC 3R .61 12: DHHS/Medical Care Commission - No action was taken on this rule at the request of the agency. 

1 NCAC 1 4 V .430 1 : DHHS/Commission for MH/DD/SAS - The rewritten rule submitted by the agency was approved contingent 
upon receiving clarifying changes today. The rule was subsequently received. 

ISA NCAC 21H .0110: DENRy Commission for Health Services - This rule was withdrawn by the agency. 

1 7 NCAC 6B .0 1 1 8: DEPARTMENT OF REVENUE - Staff will direct a letter to the agency due to their lack of response. The letter 
will indicate that unless the agency responds to the Commission at the Commission's next meeting, the Commission will interpret 
the lack of a response as an indication that the agency has decided not to change the rule. 

21 NCAC 11 .0109: NC Board of Employee Assistance Professionals - The rewritten rule submitted by the agency was approved 
by the Commission. 

21 NCAC 46 .1804 and .2506: NC Board of Pharmacy - The agency submitted a rewritten rule in response to the Commission's 
objection to . 1 804. However the Commission objected to the rewritten rule on the basis of ambiguity and also on the basis of lack 
of statutory authority to the extent that the rewritten rule purports or attempts to regulate the behavior of third persons. The rule is 
unclear as to the meaning of "altered." It is unclear what is meant by the term or from where (or whom) the alterations come. 
Commissioners Devan and Smallwood voted against the motion. The agency responded to the Commission's objection to .2506 by 
saying that they would not rewrite the rule and asking the Commission to return the rule. However, the Board's Executive Director 
and attorney asked the Commission to reconsider the rule and presented some arguments that they wished the Commissioners to 
consider. There was no motion made to reconsider the rule. The agency's representatives indicated that they would like some 
additional time to determine if the agency might present a rewritten rule after today's discussion. They requested that the rule not 
be returned immediately while they considered the Commission's comments. 

21 NCAC 57A .0305: NC Appraisal Board - The agency responded that their Board was meeting today and requested additional time 
to respond. 

LOG OF FILINGS 

Chairman Powell presided over the review of the log and all rules were unanimously approved with the following exceptions: 

10 NCAC 41 S .0101: DHHS/Social Services Commission - The Commission objected to the original rule due to ambiguity. 
Subparagraph (l3){ I ) is not grammatically correct nor does it make sense as written. The rewritten rule submitted by the agency was 



13:18 



NORTH CAROLINA REGISTER 



March 15, 1999 



1565 



RULES REVIEW COMMISSION 



approved by the Commission. 

10 NCAC 41S .0704: DHHS/Social Services Commission - The Commission objected to the original rule due to ambiguity. In (n), 
it is not clear what is meant by a "recognized testing agency." The rewritten rule submitted by the agency was approved by the 
Commission. 

COMMISSION PROCEDURES AND OTHER MATTERS 

Chairman Powell mentioned that a proposed law suit against the Rules Review Commission is being considered by the Board of 
Pharmacy. 

The next meeting will be on March 1 8, 1 999. 

The meeting adjourned at 1 1 :25 a.m. 

Respectfully submitted, 
Sandy Webster 



1566 NORTH CAROLINA REGISTER March 15, 1999 13:18 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions along with an index 
to all recent contested cases decisions which are filed under North Carolina's Administrative Procedure Act. Copies of the 
decisions listed in the index and not published are available upon request for a minimal charge by contacting the Office of 
Administrative Hearings. (919) 733-2698. .Also, the Contested Case Decisions are available on the Internet at the following 
address: http://www.state.nc.us/OAH/hearings/decision/caseindex.hlm. 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 

JULIAN MANN. Ill 

Senior Administrative Law Judge 

FRED G.MORRISON JR. 

ADMIMSTLLATIVE LAW JUDGES 



Sammie Chess Jr. 
Beecher R. Gray 
Melissa Owens 
Meg Scott Phipps 



Robert Roosevelt Reilly Jr. 
Dolores O. Smith 
Beryl E. Wade 



.4GENCY 



CASE 
MMBER 



ALJ 



DATE OF 
DECISION 



PIBLISHED DECISION 
REGISTER CITATION 



ADMINISTRATION 

Occaneechi Band ot the Saponi Nation V NC Comm of Indian Affairs 96 DOA 0006 Smith 

Carlton L Coleman v Administration. Division ot Purchase and Contract 98 DOA 1016 Phipps 
Unique Printing, inc v NC A&T, Bohh\ E Aldrich, Dir ot Purchasing, 98 DOA 1743 Owens 

NC A&T, and Evelyn H Gales, Asst Dir of Purchasing. NC A&T 



ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Alcoholic Beverage Control Commission v Kenneth Jerome 
Alcoholic Beverage Control Commission v Jesse Jacob JovTier, Jr 
Alcoholic Beverage Control Commission v Trade Oil Company. Inc 
Alcoholic Beverage Control Commission v Pantana Bobs. Inc 
Alcoholic Beverage Control Comm v Partnership T/A C & J's Shipwreck 
Alcoholic Beverage Control Comm v Abdelhakeem Murawch Saleh 
Alcoholic Beverage Control Comm v Harold Webster Hadnott 
Alcoholic Beverage Control Commission v Axis Entertainment 
Sokha Huor Ramadneh v Alcoholic Beverage Control Commission 
.Mcoholic Beverage Control Commission v Delores Williams .Alnaqib 
Alcoholic Beverage Control Commission v Axis Entertainment 
Alcoholic Beverage Control Commission v James Aubrey Stephenson 
Alcoholic Beverage Control Commission v Bridgette Dee Williams 
Alcoholic Beverage Control Commission v Robert Lee. Inc 
Alcoholic Beverage Control Comm v Pannership, T/A Variety Pic Up #21 
Tarus Jackson v Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Comm v Simple Elegance Restaurants. Inc 
Alcoholic Beverage Control Comm v Daniel Hinton Green 
Alcoholic Beverage Control Comm v Zaheer Ahmad Bajwa 
Alcoholic Beverage Control Comm v Partnership T/A Club Old Times 
Alcoholic Beverage Control Comm v Jerald Taft Howell. Jr 
Alton Ollivierra Perr. v Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Comm v Khaled Mohamad Alzer 
Alcoholic Beverage Control Comm v Abdelhakeem M Saleh 
William Randall Banks v Alcoholic Beverage Control Commission 
.Alcoholic Bev Control Comm v Partnership T/A Alston's Conv Store 
Alcoholic Beverage Control Comm v Fast Fare. Inc. 
Alcoholic Beverage Control Comm v Frank Talley 
Phillip Allen Powell. Monika K Powell. Jana Vlasta Kozlik v Doyle 
D Alley. ABC Commission. Shon Talley. ALE Agent 



12/07/98 
12/16/98 
02/15/99 



13 13 NCR 1075 



97 ABC 1205 


Phipps 


07/23/98 




97 ABC 1438 


Phipps 


06/19/98 




98 ABC 0033 


ReilK 


08/21/98 




98 ABC 0293 


Reilllv 


09/17/98 


3,11 NCR 933 


98 ABC 0296 


Morrison 


08/19/98 




98 ABC 0308 


Gra\ 


02/16/99 




98 ABC 0324 


Smith 


1 2/02/98 




98ABC0357»' 


Reilly 


07/02/98 




98 ABC 0382 


Smith 


06/30/98 


3 03 NCR 350 


98 ABC 0392 


Chess 


07/30/98 




98ABC0401*' 


Reillv 


07/02/98 




98 ABC 0494 


Chess 


09/01/98 




98 ABC 0501 


Reilly 


08/11/98 




98 ABC 05 18 


Gray 


08/11/98 




98 ABC 0714 


Morrison 


10/09/98 




98 ABC 0768 


Smith 


07/13/98 




98 ABC 0850 


Phipps 


10/26/98 




98 ABC 0889 


Morrison 


11/06/98 




98 ABC 0960 


Owens 


10/30/98 




98 ABC 1071 


Owens 


01/29/99 




98 ABC II7I 


Smith 


12/03/98 




98 ABC 1298 


Owens 


11/23/98 




98 ABC 1321 


Gra\ 


02/05/99 




98 ABC 1341 


Morrison 


02/12/99 




98 ABC 1355 


Gray 


02/10/99 




98 ABC 1374 


Chess 


02/16/99 




98 ABC 1398 


Grav 


02/02/99 




98 ABC 1452 


Phipps 


02/08/99 




99 ABC 0036 


Smith 


02/23/99 





13:18 



NORTH CAROLINA REGISTER 



March 15, 1999 



1567 



CONTESTED CASE DECISIONS 



AGENCY 

BOARD OF CONTRACTORS 

Heritage Pointe Builders. Inc & Patrick Hannon \ Bd of Contractors 

CRIME CONTROL AND PUBLIC SAFETY 

Loretta Battle v Crime Victims Compensation Commission 
C\7ithia Austin v Crime Victims Compensation Commission 
Marcella Skaggs v Crime Victims Compensation Commission 
Talmadge E McHenrs v Crime Victims Compensation Commission 
Linda Caldwell Wiggins v Crime Victims Compensation Commission 
Kenneth T L\1le v Crime Victims Compensation Commission 
Shirley Henrvhand v Crime Victims Compensation Commission 
Brenda Jean Thomas v Crime Victims Compensation Commission 
Tarevton L Johnson v Crime Victims Compensation Commission 
Mia Thompson-Clark v Crime Victims Compensation Commission 
Godfrey Akenabor v Crime Victims Compensation Commission 
Valine H Thompson v Crime Victims Compensation Commission 
Rufus K Williams v Department of Crime Control & Public Safety 
Faye E Powell v Crime Victims Compensation Commission 
Hubert Lee Grant v Crime Victims Compensation Commission 
Man' Elizabeth Troutman v Crime Victims Compensation Comm 
Brenda H Alston v Crime Victims Compensation Commission 
Shirley P Chen v Crime Victims Compensation Commission 
Lorine Smith v Crime Victims Compensation Commission 
Catherine Walker v Crime Victims Compensation Commission 
Martha Bumpass v Crime Victims Compensation Commission 
Kenneth B Hall, Sr v Crime Victims Compensation Commission 
DunnieG Smith v Crime Victims Compensation Commission 
Felicia House v Crime Victims Compensation Commission 
Antonia F Jones v Office of Administrative Hearings 

ENGINEERS AND SI R\ E\ ORS. BOARD OF EXAMINERS FOR 

Thomas A Truelove, Jr , PE v Bd /Examiners/Engineers and Surveyors 
Kenneth D Suttles v. Bd./Registration/Engmeers and Land Surveyors 

ENVIRONMENT AND NATl RAL RESOl RCES 

Albert C Wright, Jr v Environment. Health, & Natural Resources 
Albert C Wright, Jr v Environment, Health. & Natural Resources 
Ladane Williamson and Odell Decarol Williamson v DENR 
Teresa Heflin v Department of Environment and Natural Resources 
Ronald Prater v Department of Environment and Natural Resources 
Alltel Carolina. Inc v Dept of Environment and Natural Resources 
James F Smith v Department of Environment and Natural Resources 
William Hickman v Department of Environment and Natural Resources 
Hickor> Alliance v Department of Environment and Natural Resources 
and 

Godfrey Lumber Company. Inc 
John M Silvia V Department of Environment and Natural Resources 
Godfrey Lumber Company, inc v Dept /Environment & Natural Resources 
and 

Hickory Alliance 
Gregor> B Jackson. Brenda R Jackson v Greene Cty Hlth Dept . ENR 
Robert G Goff. Sr v Department of Environment and Natural Resources 
Scotland Water. Cedar Circle v Environment and Natural Resources 
Womble & Company v Dept of Environment and Natural Resources 
Eric Glenn Harrison v Environment and Natural Resources 
Robert G Goff. Sr v Department of Environment and Natural Resources 
Mid South Water Systems. Inc v Environment and Natural Resources 
Wilbur E Earp V Department of Environment and Natural Resources 
Norell Bahrs v Carteret Ct> Health Dept . DENR 
Charles Davis v Department of Environment and Natural Resources 
J C Faw v Department of Environment and Natural Resources 
Unicon Concrete. Inc v Dept of Environment and NaUiral Resources 
Hugh & Bonnie Mills V Dept of Environment and Natural Resources 
Janice Spruill v Department of Environment and Natural Resources 
JM's Professional Construction Svcs , Ltd v DENR 
Ronald E Bennett v Environment and Natural Resources 
Don W Hunt v Halifa.\ County Health Department 
Wayne D Magee v Department of Environment and Natural Resources 
Karen J Dixon, M>Ta Jones. Alphonzo Dixon v Nash Ct> Health Dept 
Amos Vaughan v Department of Environment and Natural Resources 

Division of Air Quality 

Sebnng De\ . Pafrick Oueen/John Amirante v DENR, Air Quality 
John Beard v DENR. Division of Air Quality 



CASE 




DATE OF 


PI BLISHED DECISION 


NUMBER 


AUI 


DECISION 


REGISTER CITATION 


97 LBC 0243 


Phipps 


08/17/98 




97 CPS 0654 


Grav 


08/10/98 




97CPS 1499 


Reilly 


08/1 2/98 


13 05 NCR 533 


98 CPS 0065 


Owens 


06/05/98 




98 CPS 01 16 


Gray 


06/24/98 




98 CPS 0153 


Chess 


08/27/98 




98 CPS 01 76 


Reilly 


07/06/98 




98 CPS 0263 


Mortison 


08/11/98 




98 CPS 03 14 


Morrison 


08/11/98 




98 CPS 0327 


Reilly 


09/02/98 




98 CPS 0349 


Chess 


05/14/98 




98 CPS 0427 


Owens 


10/30/98 


13 12NCR 1015 


98 CPS 0674 


Morrison 


11/18/98 




98 CPS 0676 


Morrison 


10/23/98 




98 CPS 0808 


Owens 


08/28/98 




98 CPS 0839 


Morrison 


10/21/98 


13 10NCR 853 


98 CPS 0901 


Smith 


11/12/98 




98 CPS 0952 


Phipps 


11/10/98 




98 CPS 1015 


Phipps 


09/17/98 




98 CPS 1050 


Gray 


02/15/99 




98 CPS 1129 


Gray 


02/15/99 




98 CPS 1 1 54 


Gray 


02/15/99 




98 CPS 1170 


Mann 


12/21/98 




98 CPS 1201 


Reilly 


01/04/99 




98 CPS 1273 


Smith 


01/25/99 




98 CPS 1403 


Gray 


01/29/99 




98 ELS 0047 


Mann 


11/12/98 


13 12 NCR 1035 


98 ELS 0099 


Mann 


02/09/99 


13 18 NCR 1578 


96EHR0610*'' 


Gray 


01/29/99 




96 EHR 0630*" 


Gray 


01/29/99 




96EHRI926 


Gray 


09/01/98 


13 07 NCR 609 


97 EHR 0409 


Morrison 


07/29/98 




97 EHR 0451 


Reilly 


07/02/98 




97 EHR 0729 


Gray 


01/28/99 




97 EHR 1365 


Chess 


07/17/98 




97 EHR 1388 


Gray 


11/06/98 


13 11 NCR 928 


97 EHR 1607 


Reilly 


07/17/98 




97 EHR 1646 


Chess 


06/03/98 




97 EHR 1676 


Reilly 


07/17/98 




98 EHR 0042 


Reilly 


07/02/98 




98 EHR 0072*- 


Gray 


06/25/98 




98 EHR 0236 


Smith 


06/09/98 




98 EHR 0345 


Chess 


11/05/98 




98 EHR 0373 


Reilly 


08/28/98 




98 EHR 0448»- 


Gray 


06/25/98 




98 EHR 0548 


Gray 


12/02/98 




98 EHR 0606 


Smith 


10/21/98 




98 EHR 0884 


Owens 


11/02/98 




98 EHR 0890 


Owens 


11/09/98 




98 EHR 0957 


Gray 


12/11/98 




98 EHR 0990 


Mann 


01/14/99 




98 EHR 1090 


Phipps 


12/08/98 




98 EHR 1215 


Reilly 


01/27/99 




98 EHR 1217 


Owens 


12/21/98 




98 EHR 1237 


Owens 


12/29/98 




98 EHR 1 285 


Gray 


12/17/98 




98 EHR 1471 


Phipps 


02/02/99 




98 EHR 1475 


Reilly 


02/10/99 




98 EHR 1538 


Reilly 


01/15/99 




98 EHR 0926 


Phipps 


12/11/98 




98 EHR 1314 


Grav 


01/29/99 





\ 



1568 



NORTH CAROLINA REGISTER 



March 15, 1999 



13:18 



CONTESTED CASE DECISIONS 



AGENO 

Division of Coastal Management 

Preston Warren v Division ot Coastal Management. Wilmington, NC 
Marion T Noe v DENR. Division ot Coastal Management 

Division of Environmental Healtii 

Gerald P Sigal \ DENR. Division of Environmental Health 
Ronnie Lee Hamill v Pitt Ct\ Health Dept , Environmental Health Div 
Joe Scichilone v Crave Natural Resources. Div of Environmental Health 
Ralph K Crons v Burke Counts Env Health Dept . Septic Tank Div 
Carl D Wicker v Alamance Ct\ Health Dept . Env Health Division 

Division of Environmental Management 

Save Our Rivers, Inc . et al v Town of Highlands. EE[NR, Env Mgmt , 

William W Cobe>. Jr , Secretar> 
US Dept of the Interior Nat'l Park Svce v Environmental Mgmt Comm 

Division of Marine Fisheries 

Lad\ LaShanda Melvin Brvant v EHNR. Division of Marine Fisheries 
Gerald Moore, et al v DENR, Division of Marine Fisheries 

Division of Solid Haste Management 

Steve Aldridge, et al v DENR, Division of Solid Waste Management 

Division of Mater Quality 

Ravmond L Martin v DENR. Division of Water Oualit> 

Worsley Oil Companies, Inc v DENR, DWQ, Groundwater Section 

Silver Bullet, Inc v DENR, Division of Water Qualm 

HEALTH AND HL MAN SERVICES 

Stanley C Ochulo v OtT /Administrative Hearings, Mr R Marcus Lodge 
Oliver C Johnson, Hazel T Johnson v Health and Human Ser\'ices 
Louise Streater \ Health and Human Services 

Richard E Laurence, Rebecca A Lawrence v Health and Human Senices 
John David Brinson \ Department of Human Resources 
Stephanie Wade v Department of Health and Human Services 
CaroK-n L Freeman v Department of Human Resources 
Otis L Mack, Jr v OtTice of Administrative Hearings 
Christopher Genmano, Lee Germano \ Department of Health 
Carol and Conrad Kunkel v Department of Human Services 
Donald Wasne Perry v Office of Emergency Medical Services 
E Jean Woods v EDS - Medicaid 

Soma Schaefer Jolly v Village Care King, Autumn Care, DHHS 
Sandra Nelson Molina v Department of Health cS; Human Services 
Bemadette Anderson \ Department of Health & Human Services 
Cheryl Lynn Staton v Department of Health & Human Senices 
Man Barrier v Administrative Hearing 
Jame^ Michael Wallace v Department of Human Resources 
Barbara Jump \ Department of Human Services 
Keith Warren Kendall v Nurse Aide Registry and DFIHS 
Brandy Shea Minton \ Markus Lodge, General Counsel 
Reeva Oliver V Board of Nursing, Nursing Asst Registry- 
Jackie E Ratliflfv Department of Health & Human Services 

Division of Child Development 

Dulatown Presbyterian Children's Ctr v DHHS. Child Development 
Cookie's Day Care Home. Wonza W Garolds \ DHHS. Child De\ 
Cassandra Myers v Division of Child Development 
Theresa McCormick v DHHS. Division of Child Development 
Dulatown Presbylerian Children Ctr v DHR. Child Development 
Dora's Child Development Center v Mecklenburg Cty DSS. and DHR 
Victory Day Care & Learning Ctr . Joe Walters v DHHS, Child Dev 
Four-County Community Services, Inc v Human Resources, Child Dev 
Kandy Kane Day School, Inc v DHHS, Div of Child Development 

Division of Facility Services 

Pearlie W Lawson \ DHHS, Facility Svcs., Health Care Personnel Reg 
Annie K Morgan v Health & Human Services , Facility Services 
Mooresville Hospital Mgmt Associates, Inc d/b/a Lake Norman Regional 

Medical Center v DHR. Facility Services, Certificate of Need Section 
and 

Autumn Corporation and McKinley V Jumey 
Warren Moore & Catherine Moore v DHR. Div of Facility Services 
Constellation Health Services, Inc and Constellation Senior Services, 

Inc V DHR. Facility Services, Group Care Licensure Section 



CASE 




DATE OF 


PI BLISHED DECISION 


MMBER 


AU 


DECISION 


REGISTER CITATION 


QSEHROIVV 


Phipps 


10/05/98 




98 EHR 0976 


Smith 


12/02/98 




98EHR005I 


Smith 


10/02/98 




98 EHR 1200 


Smith 


12/29/98 




98 EHR 1286 


Chess 


01/07/99 




98 EHR 1334 


Owens 


01/14/99 




98 EHR 1718 


Wade 


02/03/99 




91 EHR 0377 


Gray 


07/30/98 




98 EHR 0410 


Smith 


08/20/98 


13 06 NCR 578 


97 EHR 1459 


Gray 


07/20/98 




98 EHR 0322 


Owens 


10/08/98 


13 09 NCR 797 


98 EHR 066.5 


Chess 


09/09/98 


13 07 NCR 617 


98 EHR 0590 


Gray 


09/21/98 




98 EHR 0735 


Chess 


08/24/98 




98 EHR 0931 


Chess 


08/20/98 




98 DHR 0021 


Reillv 


06/24/98 




98 DHR 0090 


Gray 


07/08/98 




98 DHR 0196 


Gray 


06/03/98 




98 DHR 0209 


Phipps 


07/15/98 




98 DHR 0369 


Owens 


08/17/98 




98 DHR 0666 


Reilly 


08/19/98 




98 DHR 072 1 


Gray 


08/05/98 




98 DHR 0729 


Phipps 


09/09/98 




98 DHR 0780 


Owens 


07/28/98 




98 DHR 1047 


Smith 


12/04/98 




98 DHR 1097 


Smith 


01/13/99 




98 DHR 1118 


Gray 


10/26/98 




98 DHR 11 34 


Chess 


01/07/99 




98 DHR 1243 


Chess 


01/21/99 




98 DHR 1257 


Momson 


12/11/98 




98 DHR 1259 


Smith 


11/30/98 




98 DHR 1287 


Chess 


11/19/98 




98 DHR 1340 


Gray 


12/21/98 




98 DHR 1350 


Reiilv 


01/20/99 




98 DHR 1368 


Reilly 


01/29/99 




98 DHR 1595 


Smith 


01/06/99 




98 DHR 1604 


Reillv 


02/09/99 




98 DHR 1689 


Reilh 


02/01/99 




98 DHR 0654 


Gray 


08/06/98 




98 DHR 0946 


Gray 


01/13/99 




98 DHR 0948 


Owens 


09/03/98 




98 DHR 0989 


Smith 


12/29/98 




98 DHR 11 12 


Morrison 


10/16/98 




98 DHR 1184 


Phipps 


09/25/98 




98 DHR 1533 


Smith 


01/25/99 




98 DHR 1534 


Smith 


01/25/99 




98 DHR 1668 


ReilK 


02/24/99 




97 DHR 1034 


Becton 


07/30/98 




97 DHR 1046*' 


Phipps 


07/23/98 




97 DHR 1209 


Reilly 


06/23/98 





97 DHR 1279 
97 DHR I 529 



Mann 
Grav 



09/08/98 
06/24/98 



13:18 



NORTH CAROLINA REGISTER 



March 15, 1999 



1569 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
MMBER 



AU 



DATE OF 
DECISION 



PI BLISHED DECISION 
REGISTER CITATION 



and 
Diversified Health Group. LLC and The Innovative Health Group. Inc 
Dialysis Care of NC, LLC. d/b/a Dialysis Care of Rowan County 

V DHR. Division of Facilitv Services. Certificate of Need Section 

V Biomedical Applications of NC. Inc d/b/a BMA of Kannapolis d/h/a 
Metroiina Kidney Center of Kannapolis (Lessee) and Metrolina Nephrology 
Associates. PA (Lessor) 

Robin Annette Reavis v Health and Human Svcs , Div of Facility Svcs 
Jennifer Blofeld v DHHS. Facility Svcs . Health Care Personnel Registry 
Sunlite Retirement Home, Winnie Jane Johnson v DHR. Facility Services 
Helen Shokoti v Health and Human Services. Div of Facility Services 
Ann Davis Rest Home v Group Care Licensure Section 
Diane Lingard v DHR. Facility Svcs. Health Care Personnel Reg 
Kimherly Annette Smith Hull v DHHS. Division of Facility Services 
Living Centers-Southeast. Inc . Lutheran Retirement Center-Wilimmgton, 

Inc . and New Hanover Health Care Center. L L C v DHHS, Div of 

Facility Services, Certificate of Need Section, 
and 
Devin Partnership and Devin Health Care Associates. LLC, Columbia 

Cape Fear Healthcare System, Limited Partnership, Living Centers 

Southeast, inc , Lutheran Retirement Center-Wilmington Inc . and 

New Hanover Health Care Center LLC 
Living Centers-Southeast, Inc . Lutheran Retirement Center-Wilimmgton, 

Inc , and New Hanover Health Care Center, L L C v DHHS, Div of 

Facility Services, Certificate of Need Section, 
and 
Devin Partnership and Devin Health Care Associates, L L C , Columbia 

Cape Fear Healthcare System, Limited Partnership, Living Centers 

Southeast, Inc , Lutheran Retirement Center-Wilmington Inc , and 

New Hanover Health Care Center LLC 
Living Centers-Southeast, Inc , Lutheran Retirement Center-Wilimington, 

inc , and New Hanover Health Care Center, L L,C \ DHHS, Di\ of 

Facility Services, Certificate of Need Section, 
and 
Devin Partnership and Devin Health Care Associates. LLC. Columbia 

Cape Fear Healthcare Svstem. Limited Partnership. Living Centers 

Southeast, Inc . Lutheran Retirement Center-Wilmington Inc , and 

New Hanover Health Care Center LLC 
Rose Mane Spencer v DHHS. Division of Facility Services 
Deborah Ann Holt v DHHS. Division of Facility Services 
Columbia Direct Mktg Corp v DHHS. Facility Svcs , Soltn Lie Br 
Tern Michelle Tyler v Health & Human Svcs, Div of Facility Services 
Dons Jones Holmes v DHHS, Facility Svcs, Health Care Personnel Reg 
Annie K. Morgan \ Health & Human Services . Facility Services 
Shirley Bowling v DHHS, Facility Services, Health Care Personnel Reg 
Johnnie E Williams v DHHS. Division of Facility Services 
Bio-Medical Applications of NC. Inc d/b/a Johnston Dialysis Ctr v 

DHHS. Division of Facility Services, Certificate of Need Section 
and 

Hillchild, LLC and Dialysis Care of NC, LLC d/b/a DCNC, LLC 
Christy Jeton Hall v DHHS. Division of Facilitv Services 
Hillchild, LLC and Dialysis Care of NC, LLC d/b/a DCNC, LLC v 

DFIHS, Division of Facility Services, Certificate of Need Section 
and 

Bio-Medical Applications of NC, Inc d/b/a Johnston Dialysis Ctr 
Judith May Gale v DHHS, Division of Facility Services 
Latonia Denise Thomas v DHHS, Division of Facility Services 
Tracey Deirde Galloway v DHHS, Facilitv Svcs , Health Care Per Reg 
Afi Teawanda BvTd v DHHS, Division of Facility Services 
Happy Dan's Home, Gladys Cooke v Facility Svcs , Group Care Lie Sect 
Wanda Best v Division of Facility Services, DFIHS 
Tracey Yelverton v DHHS, Division of Facility Services 
Rose Mane Hadley v DHHS. Division of Facility Services 
Robena Juanita Jones v DFIHS. Division of Facility Services 
Mona Lisa Lucas v DHHS. Division of Facility Services 
Edna Weaver Sawyer v DHHS. Division of Facility Services 
Linda Estes Richardson v DHHS. Division of Facility Services 
Shirley L Smith, a/k/a Shirley Lee Turner v DHHS. Facility Services 
Jeanette Crandal Williams v Health & Human Services, Facility Services 
Felicia Ozoms v DHHS, Division of Facility Services 
Carolyn Grant v Health & Human Sen ices. Facility Services 
Bridgette Taylor v Nurse Aide I Program. DFS 
Jamie Jamigan Oaks v DHHS, Division of Facility Services 
Barbara Davis v DHHS, Division of FaciliP, Services 



97 DHR 1588 



Phipps 



98DHR0245»" Phipps 



98 DHR 0247*" Phipps 



98 DHR 0706 
98 DHR 07 1 9» 



Gray 
Reilly 



08/31/98 



97 DHR 1672 


Reillv 


08/12/98 




98 DHR 0096 


Gra\ 


08/21/98 




98 DHR 0124 


Phipps 


06/11/98 




98 DHR 0173 


Chess 


08/26/98 




98 DHR 01 97 


Phipps 


06/23/98 




98 DHR 0214 


Becton 


06/22/98 




98 DHR 0239 


Phipps 


06/23/98 




98 DHR 0244*'^ 


Phipps 


11/24/98 


13 12 NCR 101 



11/24/98 



11/24/98 



98 DHR 0279 


Chess 


01/07/99 


98 DHR 0348 


Phipps 


06/22/98 


98 DHR 0394 


Mortison 


12/31/98 


98 DHR 0458 


Gray 


08/21/98 


98 DHR 0463 


Gra\ 


08/21/98 


98 DHR 0496*' 


Phipps 


07/23/98 


98 DHR 0547 


Grav 


11/09/98 


98 DHR 0639 


Reillv 


07/02/98 


98 DHR 0701 »•' 


Reillv 


02/01/99 



10/12/98 
02/01/99 



98 DHR 0739 


Owens 


12/16/98 


98 DHR 0809 


Gray 


10/23/98 


98 DHR 0824 


Gray 


09/24/98 


98 DHR 0838 


Reillv 


12/29/98 


98 DHR 0885 


Owens 


11/19/98 


98 DHR 0936 


Chess 


01/11/99 


98 DHR 0955 


Owens 


01/04/99 


98 DHR 0970 


Smith 


10/08/98 


98 DHR 1 089 


Grav 


12/29/98 


98 DHR 1110 


Grav 


01/04/99 


98 DHR 1111 


Gray 


01/04/99 


98 DHR 1131 


Chess 


01/07/99 


98 DHR 1 1 32 


Chess 


01/07/99 


98 DHR 1133 


Momson 


02/18/99 


98 DHR 11 73 


Grav 


01/20/99 


98 DHR 1264 


Owens 


02/15/99 


98 DHR 1283 


Mann 


12/14/98 


98 DHR 1284 


Smith 


01/12/99 


98 DHR 1317 


Grav 


12/21/98 



1312NCR 1018 



13 12NCR 1018 



1570 



NORTH CAROLINA REGISTER 



March 15, 1999 



13:18 



CONTESTED CASE DECISIONS 



AGENO 

Jamila Adukeijie Alghali v Health & Human Services, Facilit\ Services 
Virgie Harshaw Stinson \ Health Care Personnel Registn. 

Division of Medical Assistance 

Charlotte-Mecklenburg Hospital Authont\. d/b/a Carolmas Medical Ctr 
and Harr\ Mahannah, M D v DHHS, Division ot Medical Assistance 
Isaiah Smith. Jr. by/through his Guardian. Lawrence E Thompson, 111 

V DHHS, Division ot Medical Assistance 
William M Bell, Jr v DHHS, Medical Assistance, Third Parts Rec Sec 
Alic F Schneider, Julia R Hammonds v DHHS, Medical Assistance 
April DauTi Bass v DHHS, Division ol Medical Assistance 

Division of Social Services 

William & Crystal Steakley v DHHS, Division ofSocial Services 
Raji Abdus-Salaam v Department of Human Resources, DSS-DCA 

Child Support Enforcement Section 
William Rohen Cameron \ Department of Human Resources 
Robert H Black v Guilford County Child Support Enforcement 
Dorman E Drake v Department of Human Resources 
Garry R McNeill v Department of Human Resources 
Robert Alan Davis v Department of Human Resources 
Michael W White v Department of Human Resources 
Troy R Emmons, Jr v Department of Human Resources 
Man in A Pike v Department of Human Resources 
Mars Putnam Avery v DSS, Durham County Child Support Enforcement 
Anthony B Gnffm \ Department of Human Resources 
Gilbert G Gray v Department of Human Resources 
Jimmy Dorsey v Department of Human Resources 
Herbert Leon Sellers \ Department of Human Resources 
Gregory Boren \ Department of Human Resources 
David W Davis v Department of Human Resources 
Dale W Hutchinson v Department of Human Resources 
Kelvin Cherry v Department of Human Resources 
Joe A Lynch V Department of Human Resources 
Gap. W' Wampler V Department of Human Resources 
Kenneth Bryan Haynes \ Department of Human Resources 
Kenneth Eugene Scott v Department of Human Resources 
Mark Owens Frink v Department of Human Resources 
JefTery Lee Graves v Department of Human Resources 
Donald L Carr, Jr v Department of Human Resources 
Marvin Diggs v Department of Human Resources 
Michael Patrick Dyme v Department of Health & Human Services 
Paula C Freeman v Department of Health & Human Services 
Sherman L Arnold Sr v Department of Health & Human Services 
Clifton Pierce v Department of Health & Human Services 
Dennis Lee McNeill v Department of Human Resources 
Byron O Ashby II v Department of Human Resources 
Hubert L Morrison \ Department of Human Resources 
Robert Alan Davis v Department of Human Resources 
Larrv S Robinson v Child Support Enforcement Agency 
Darryl C Thompson v Department of Health & Human Services 
Darryl C Thompson v Department of Health & Human Services 
Michael J Burgess v Department of Human Resources 
Michael Anthony Hill v Department of Human Resources 
Joseph L Hill v Department of Human Resources 
Michael A Wilder v Department of Human Resources 
Billy Anthony Jr v Department of Human Resources 
James B Benson v Department of Human Resources 
Lawrence Wilkes v Department of Human Resources 
Alton D Bagley v Department of Human Resources 
Bemel B Berry Jr v Department of Human Resources 
Darryl Simpkins v Department of Health & Human Services 
Anthony Montgomerv v Department of Human Resources 
Temace Joan Ness v Department of Human Resources 
Joseph Gerard McPhillips v Department of Human Resources 
Terry Letterman v Department of Human Resources 
Kenneth Pabers v Department of Human Resources 
William E Mines V Department of Human Resources 
Christopher Alan v Department of Human Resources 
Annette Chipman v Department of Human Resources 
Paul J Mobley , Jr v Department of Human Resources 
Alvin G Piper V Department of Health & Human Services 
Robert A Sherer v Department of Human Resources 



CASE 




DATE OF 


PI BUSHED DECISION 


NIMBER 


AU 


DECISION 


REGISTER CITATION 


98DHR 1326 


Wade 


02/16/99 




98DHR1692 


Gray 


02/10/99 




97DHR0621 


Smith 


07/08/98 




98 DHR 0273 


Gray 


12/07/98 




98 DHR 0979 


Mann 


01/13/99 


13 I6NCR 1366 


98 DHR 0994 


Morrison 


1 0/29/98 




98 DHR 1687 


Mann 


01/14/99 




98 DHR 0076 


Gray 


07/20/98 




98 DHR 0771 


Owens 


07/30/98 




96CRA 1525 


Gray 


01/11/99 




96CRA 1548 


Mann 


10/09/98 




96CRAI717 


Smith 


08/25/98 




96 CRA 1 743 


Reilly 


10/22/98 




96CRA 1781*' 


Phipps 


08/20/98 




96 CRA 1 784 


Gray 


09/25/98 




96 CRA 1 798 


Reilly 


08/25/98 




96 CRA 1814 


Chess 


09/24/98 




96 CRA 1 849 


Morrison 


09/01/98 




96 CRA 1855 


Gray 


12/18/98 




96 CRA 1858 


Mortison 


10/08/98 




96 CRA 1 862 


Smith 


12/15/98 




96 CRA 1932 


Smith 


11/06/98 




96 CRA 1945 


Gray 


12/14/98 




96 CRA 1976 


Smith 


11/06/98 




96 CRA 1981 


Mann 


08/26/98 




97 CRA 0026 


Gray 


12/14/98 




97 CRA 0045 


Phipps 


10/09/98 




97 CRA 0187 


Smith 


12/15/98 




97 CRA 0444 


Mann 


02/19/99 




97 CRA 1232 


Chess 


11/06/98 




97 CRA 1 524 


Mann 


10/09/98 




98 CRA 01 37 


Becton 


06/23/98 




98 CRA 0545 


Reilly 


06/08/98 




98 CRA 0588 


Reilly 


06/24/98 




98 CRA 0787 


Gray 


09/17/98 




98 CRA 1117 


Smith 


12/18/98 




98 CRA 1152 


Mann 


10/28/98 




98 CRA 1430 


Smith 


01/11/99 




96CSE1305 


Gray 


06/22/98 




96CSE1435 


Mann 


07/15/98 




96CSE1649 


Reilly 


08/12/98 




96CSE 1780*" 


Phipps 


08/20/98 




96CSE1848 


Grav 


11/05/98 




96CSE1854*" 


Chess 


09/01/98 




96CSE1902*'- 


Chess 


09/01/98 




96CSE1989 


Mann 


12/10/98 




96 CSE 2028 


Mann 


08/26/98 




97 CSE 0624 


Chess 


11/06/98 




97 CSE 1301 


Chess 


07/17/98 




97 CSE 1393 


Reilly 


06/24/98 




97 CSE 1399 


Gray 


12/14/98 




97 CSE 1419 


Gray 


11/17/98 




97 CSE 1424 


Chess 


06/02/98 




97 CSE 1435 


Smith 


06/12/98 




97 CSE 1436 


Chess 


08/11/98 




97 CSE 1442 


Phipps 


06/17/98 




97 CSE 1450 


Mortison 


12/09/98 




97 CSE 1467 


Mann 


10/09/98 




97 CSE 1492 


Smith 


06/22/98 




97 CSE 1523 


Mann 


02/19/99 




97 CSE 1527 


Mann 


09/08/98 




97 CSE 1544 


Chess 


10/16/98 




97 CSE 1545 


Phipps 


07/23/98 




97 CSE 1568 


Phipps 


06/17/98 




97 CSE 1599 


Phipps 


11/10/98 




97 CSE 1605 


Mann 


07/15/98 





13:18 



NORTH CAROLINA REGISTER 



March 15, 1999 



1571 



CONTESTED CASE DECISIONS 



AGENCY 

Rodney A Morrison v Department of Human Resources 

Gregory Andre Brown v Department of Health & Human Services 

Rodger Hazen II v Department of Human Resources 

Marion Amett v Department of Human Resources 

Wade A Burgess v Department of Human Resources 

Robert L Rohmson v Department of Human Resources 

Michael William Fisher v Department of Human Resources 

Jamie A Hurtt v Department of Health & Human Services 

Renardo Jenkms v Department of Human Resources 

Anthonv Love v Department of Human Resources 

Enc Baldwin v Department of Health & Human Services 

Eddie R Steward v Department of Health & Human Services 

Steven Kent Gold v Department of Human Resources 

LeroyJ Poole v Department of Human Resources 

Hoyal A McLean v Department of Health & Human Services 

Michael Bernard Hill v Department of Health & Human Services 

Terry M Cable v Department of Human Resources 

Charlie Ratliflfjr v Department of Health & Human Services 

Donald W Lee v Department of Health & Human Services 

Bobby D Cook v Department of Health & Human Services 

John B Hall v Department of Human Resources 

Derrick A Brinton v Department of Human Resources 

Tabatha D Pate v Department of Human Resources 

Amanda F Blount v Department of Human Resources 

Gregory Carty (IV #1564206) v Department of Human Resources 

Oregon. Carty (I V # 1 564 1 66 ) v Department of Human Resources 

John L Bullard V Department of Human Resources 

Frank A Cotton v Depanmentof Human Resources 

Charlie Gray Hunt Jr v Department of Human Resources 

Keith D & Lydia C Wright v Department of Health & Human Services 

Willie R Cruse v Department of Health & Human Services 

Thomas H Lotze. Jr v Department of Health & Human Services 

Robert L Williams v Department of Human Resources 

Patrick Bass v Department of Health & Human Services 

Tauanna Wheeler \ Department of Health & Human Services 

Timothy Kinney v Department of Health & Human Ser\ices 

Teresa L Galloway v Department of Health & Human Services 

Michael A Looper v Department of Health & Human Ser\'ices 

Kenneth E Strickland v Department of Health & Human Services 

Hoyt H Bunt Jr v Department of Health & Human Services 

Vernon Reginald Pinkney v Department of Health & Human Services 

Elijah G Deans v Department of Health & Human Services 

James Howard Alexander v Department of Health & Human Services 

Lee J Coggins v Department of Human Resources 

Mark J Houlbrook v Department of Health & Human Services 

Henry A Harriel. Jr v Depanment of Health & Human Services 

Amanda F Haviland Blount v Department of Health & Human Sen ices 

Deniira Jeffries v Department of Health & Human Services 

Bryan L Barksdale v Department of Health & Human Services 

Cleatus Dean Cuthbertson v Department of Human Resources 

Cleatus Dean Cuthbertson v Department of Human Resources 

Karen Mitchell v Department of Human Resources 

Robert S Willett v Department of Health & Human Services 

Judi Devlin v Department of Health & Human Services 

Issac L Huey v Department of Health & Human Services 

Curtis T Brown v Department of Health & Human Services 

Rafael L Garcia v Department of Human Resources 

David Chisolm v Depanment of Human Resources 

Robert McKo\ \ Department of Health & Human Services 

Marc R McGahee v Department of Human Resources 

Solomon Freeman v Department of Human Resources 

Bill G Seamans v Scotland Cty Child Sup Enf -Scotland County DSS 

Nelson Lee Allen v Department of Human Resources 

Michael JetTerson v Department of Health & Human Serv ices 

Keith Jerome Greene Jr v Department of Human Resources 

Derrick M Mallety v Department of Human Resources 

Cleveland Terrv v Department of Human Resources 

Tony Mitchell Guion v Department of Health & Human Services 

Curtis M Threatt \ Department of Health & Human Services 

Tern L Dedie v Department of Human Resources 

Michael Lashawn McLaurin v Depanment of Human Resources 

Jeffrey Navares v Department of Human Resources 

Larry C William v Depanment of Health & Human Services 

Joseph R Engelbrechtv Department of Health & Human Services 



CASE 




DATE OF 


Pl'BLISHED DECISION 


Nl'MBER 


AU 


DECISION 


REGISTER CITATION 


97CSE 1611 


Gray 


10/23/98 




97CSE 1656 


Grav 


08/27/98 




97CSE 1666 


Chess 


07/17/98 




97CSE 1685 


Mann 


12/10/98 




98CSE0071 


Morrison 


06/12/98 




98CSE0I30 


Reilly 


07/1 5/98 




98CSE0198 


Mann 


02/19/99 




98 CSE 0307 


Morrison 


07/06/98 




98CSE0310 


Smith 


06/23/98 




98 CSE 0312 


Phipps 


06/23/98 




98 CSE 03 19 


Phipps 


12/15/98 




98 CSE 0320 


Morrison 


02/02/99 




98 CSE 0333 


Morrison 


07/01/98 




98 CSE 0375 


Reilly 


07/02/98 




98 CSE 0420 


Smith 


07/29/98 




98 CSE 0421 


Becton 


07/15/98 




98 CSE 0433 


Phipps 


1 2/09/98 




98 CSE 0449 


Mann 


07/15/98 




98 CSE 0469 


Gray 


11/09/98 




98 CSE 0483 


Reiliy 


10/06/98 




98 CSE 0506 


Chess 


07/20/98 




98 CSE 0555 


Smith 


08/07/98 




98 CSE 0556 


Becton 


06/23/98 




98 CSE 0560 


Chess 


07/29/98 




98 CSE 0561'" 


Phipps 


09/23/98 




98CSE0562*'' 


Phipps 


09/23/98 




98 CSE 0569 


Morrison 


08/06/98 




98 CSE 0578 


Gray 


10/08/98 




98 CSE 0607 


Smith 


06/22/98 




98 CSE 0621 


Smith 


02/1 5/99 




98 CSE 0653 


Mann 


08/26/98 




98 CSE 0658 


Phipps 


08/31/98 




98 CSE 0682 


Smith 


06/22/98 




98 CSE 0689 


Owens 


09/18/98 




98 CSE 0691 


Owens 


10/09/98 




98 CSE 0728 


Smith 


09/1 7/98 




98 CSE 0769 


Becton 


07/30/98 




98 CSE 0783 


Chess 


09/08/98 




98 CSE 0817 


Mann 


09/08/98 




98 CSE 0818 


Morrison 


09/15/98 




98 CSE 0833 


Owens 


07/29/98 




98 CSE 0867 


Phipps 


07/20/98 




98 CSE 0869 


Reilly 


08/06/98 




98 CSE 0894 


Smith 


08/20/98 




98 CSE 0949 


Smith 


09/08/98 




98 CSE 0975 


Chess 


09/01/98 




98 CSE 0985 


Mann 


11/18/98 




98 CSE 1036 


Morrison 


09/15/98 




98 CSE 1052 


Morrison 


10/09/98 




98 CSE 1072"" 


Phipps 


01/21/99 




98 CSE 1073*'" 


Phipps 


01/21/99 




98 CSE 1095 


Reilly 


10/06/98 




98 CSE 1153 


Chess 


11/19/98 




98 CSE 1177 


Gray 


12/29/98 




98 CSE 1301 


Owens 


12/11/98 




98 CSE 1311 


Phipps 


01/22/99 




98 CSE 1353 


Reilly 


01/22/99 




98 CSE 1369 


Smith 


01/22/99 




98 CSE 1371 


Chess 


02/08/99 




98 CSE 1381 


Gray 


02/01/99 




98 CSE 1389 


Morrison 


02/01/99 




98 CSE 1391 


Phipps 


12/09/98 




98 CSE 1407 


Smith 


02/24/99 




98 CSE 1408 


Chess 


01/19/99 




98 CSE 1417 


Gray 


02/10/99 




98 CSE 1420 


Morrison 


02/01/99 




98 CSE 1424 


Phipps 


01/14/99 




98 CSE 1434 


Chess 


12/28/98 




98 CSE 1447 


Phipps 


12/18/98 




98 CSE 1458 


Smith 


01/19/99 




98 CSE 1459 


Mann 


02/19/99 




98 CSE 1461 


Gray 


02/10/99 




98 CSE 1469 


Morrison 


02/09/99 




98 CSE 1472 


Owens 


01/05/99 





1572 



NORTH CAROLINA REGISTER 



March 15, 1999 



13:18 



CONTESTED CASE DECISIONS 



AGENCY 

Antonio M Townsend v Department of Health & Human Services 

Sammy Ray Smith v Department ol Health & Human Services 

Karlos M Gregory v Department of Human Resources 

Marvin C Upchurch v Department of Human Resources 

Vince E Green v Department of Human Resources 

Mark Steven Goodu in \ Department of Human Resources 

Erick A L White v Depanmem of Human Resources 

William R Cameron V Department of Human Resources 

Dennis M McDonald v Department of Human Resources 

James Otis Masters v Department of Human Resources 

Paul R Simon V Department of Human Resources 

Barnard Jordan v Department of Human Resources 

Milton Jerome McNeil \ Department of Human Resources 

Grady Harold Reasor v Department of Human Resources 

Aleio J Heller V Department of Human Resources 

Kenneth J Curtie v Department of Human Resources 

Ronnie F Davis v Department of Health & Human Services 

Paul Monroe Covington v Department of Health & Human Services 

Vernon Reginald Pinkney v Department of Health & Human Services 

Eugene B Patton 111 v Department of Human Resources 

Douglas L Law v Department of Human Resources 

Vernon Mclverv Department of Human Resources 

Gerald Pendergrass \ Department of Human Resources 

Terain Bordley v Department of Human Resources 

James Calvin Price Jr v Department of Human Resources 

Leon McNair v Department of Human Resources 

Marvin Lee v Department of Human Resources 

Harolds Fairbank v Department of Human Resources 

Harry C Rone Jr v Department of Human Resources 

Cesar A Hernandez v Department of Health & Human Senices 

Carlton J Hicks v Department of Human Resources 

Ronald E Davis Jr v Department of Human Resources 

Douglas Sanders v Department of Human Resources 

Travis Lamont Stevenson v Department of Human Resources 

Jada Ballard v Department of Human Resources 

Reginald Mclver v Department of Human Resources 

Mia Marisa Gionzales-Sisk v Department of Human Resources 

Qua' Aaron Rich \ Department of Human Resources 

Robert E L Heck v Department of Health & Human Services 

Bobby L Mills v Department of Human Resources 

Anthony McRae v Department of Human Resources 

Dennis Warren Everson \ Department of Health & Human Services 

Albertus Shaw v Department of Health & Human Services 

Charles Anthony Jacobs v Department of Human Resources 

Johnny Richardson v Department of Human Resources 

Patricia Chambers v Department of Human Resources 

Vickie E Lane \ Michael L Adams. Department of Human Resources 

Carla P Robinson v Department of Human Resources 

Rachel D Farmer v Department of Health & Human Services 

Janice Scott Padgett (Fisher) v Department of Human Resources 

Barbara Fanta-Blandine v Department of Human Resources 

Sharon Brim v Department of Health & Human Services 

Karen White v Department of Human Resources 

Sherry L Hampton v Department of Human Resources 

Terita M Sharpe v Department of Human Resources 

Shensse Stancel Kelly v Department of Human Resources 

Melanie D Nickerson v Department of Health & Human Services 

Ruth McFadden v Department of Human Resources 

Division of Women 's and Children 's Health 

Khamis A Sirhan v DHHS. Women's/Children's Health, Nutrition Svcs 
Joseph A Nawas v DHHS, Women's/Children's Health, Nutrition Svcs 
Mohamad I Rahman v DHHS, Womens/Childrens HIth. Nutr Svcs Sect 
Evelyn Powell v Nutrition Services Section 

HI MAN RELATIONS COMMISSION 

NC Human Relations Comm Ex Rel Clarice Dial v Dixie Lee Newsome, 
Jetti Lee. Jackie Lee and Erwin Judd 



CASE 




DATE OF 


PI BUSHED DECISION 


MMBER 


AU 


DECISION 


REGISTER CITATION 


98CSEI473 


Phipps 


01/14/99 




98CSE1474 


Reilly 


12/18/98 




98CSE 1507 


Smith 


02/09/99 




98CSE 1508 


Mann 


01/26/99 




98CSE 1509 


Chess 


02/01/99 




98CSE 1510 


Gray 


02/10/99 




98CSEI5I! 


Mann 


02/19/99 




98CSE 1512 


Gray 


01/25/99 




98CSE 1513 


Momson 


01/26/99 




98CSE 1514 


Owens 


02/09/99 




98CSEI5I5 


Phipps 


02/09/99 




98CSE 1517 


Smith 


02/12/99 




98CSE 1518 


Mann 


02/19/99 




98CSE15I9 


Chess 


02/01/99 




98CSE 1520 


Gray 


02/10/99 




98CSE 1521 


Mann 


02/19/99 




98 CSE 1 523 


Owens 


12/29/98 




98CSE1524 


Phipps 


02/09/99 




98 CSE 1547 


Reilly 


02/19/99 




98 CSE 1548 


Smith 


01/26/99 




98 CSE 1552 


Mann 


02/19/99 




98 CSE 1559 


Reilly 


02/19/99 




98 CSE 1570 


Gray 


01/22/99 




98 CSE 1571 


Mann 


02/19/99 




98 CSE 1572 


Mortison 


02/18/99 




98 CSE 1573 


Owens 


02/11/99 




98 CSE 1574 


Phipps 


02/19/99 




98 CSE 1575 


Reilly 


02/19/99 




98 CSE 1576 


Smith 


01/25/99 




98 CSE 1 580 


Mann 


01/13/99 




98 CSE 1587 


Owens 


02/25/99 




98 CSE 1589 


Reilly 


01/26/99 




98 CSE 1606 


Mann 


01/26/99 




98 CSE 1609 


Phipps 


01/28/99 




98 CSE 1614 


Gray 


02/10/99 




98 CSE 1629 


Momson 


02/11/99 




98 CSE 1632 


Reilly 


02/02/99 




98 CSE 1651 


Smith 


02/24/99 




98 CSE 1660 


Gray 


02/10/99 




98 CSE 1663 


Mann 


01/20/99 




98 CSE 1682 


Reilly 


02/09/99 




98 CSE 1683 


Smith 


02/11/99 




98 CSE 1701 


Momson 


01/05/99 




98 CSE 1714 


Phipps 


01/19/99 




98 CSE 1731 


Smith 


02/02/99 




96 DCS 1944 


Mann 


01/26/99 




96 DCS 2105 


Gray 


07/08/98 




97 DCS 0124 


Reilly 


11/10/98 




97 DCS 025 1 


Phipps 


08/31/98 




97 DCS 1219 


Smith 


07/29/98 




97 DCS I486 


Mortison 


06/22/98 




97 DCS 1574 


Gray 


08/04/98 




98 DCS 0053 


Chess 


12/14/98 




98 DCS 0257 


Mortison 


12/01/98 




98 DCS 0468 


Momson 


06/09/98 




98 DCS 0508 


Mann 


12/16/98 




98 DCS 0593 


Gray 


01/19/99 




98 DCS 0675 


Reilly 


07/15/98 




98DHR02I9 


Reilly 


08/11/98 




98 DHR 0637 


Phipps 


07/02/98 




98 DHR 0923 


Chess 


11/06/98 




98 DHR 1135 


Smith 


11/13/98 




98HRC 1063 


Smith 


01/21/99 


13 16 NCR 1369 



Jl'STICE 

James Todd Tippet v NC Company Police Program 



97DOJ 1368 



Phipps 



09/10/98 



Alarm Systems Licensing Board 

Claude David Huggins v Alarm Systems Licensing Board 



98DOJ0871 



Mortison 



07/09/98 



13:18 



NORTH CAROLINA REGISTER 



March 15, 1999 



1573 



CONTESTED CASE DECISIONS 



AGENCY 

Jay Michael RatclitTv Alarm Systems Licensmg Board 
Robert Derek Ross v Alarm Systems Licensmg Board 
Randy Reith Barr v Alarm Systems Licensing Board 
Barr\ D Lyman v Alarm Systems Licensing Board 

Auctioneer Licensing Board 

Wiley R Tyndall v Auctioneer Licensmg Board 
Gavin Haviv Abadi v Auctioneer Licensing Board 

Education and Training Standards Division 

Thomas Dwayne Broun \ ShentTs' Education & Training Standards Comm 
Kenneth Joseph Jackson v ShentTs' Education & Training Standards Comm 
Odis Fitzgerald Darden v Sheriffs' Education & Training Standards Comm 
Hoyle Kenneth Wise, Jr v Sheriffs' Education & Training Standards Comm 
Kenneth Earl Brantley v Criminal Justice Ed & Training Stds Comm 
Hearl Oxendine v Criminal Justice Education & Training Stds Comm 
James Farrell Roberts v Criminal Justice Education & Training Stds Comm 
Phillip Keith McPherson v Sheriffs' Education & Training Standards Comm 
Daryl LaMar Bryant v Shenffs' Education & Training Standards Comm 
Harold F Esters v SheriflFs' Education & Training Standards Comm 
William Scott Key v SherifTs' Education & Training Standards Comm 
Cecil W Duke, Jr v Criminal Justice Education & Training Stds Comm 
Marvin Shemel Clark v Department of Correction 
and 
Marvm S Clark v Criminal Justice Ed & Training Stds Comm 
Amado Martinez v Criminal Justice Education & Training Stds Comm 
Johnny Wayne Wills v Criminal Justice Education & Training Stds Comm 
James E Ellerbe v ShentTs' Education & Training Standards Comm 
Paul Harvey Taylor v DOJ, Criminal Justice Ed &. Training Stds Comm 
Kenneth Joseph Jackson v Sheriffs' Education & Training Standards Comm 
Kelly Suzanne Mayberry v Sheriffs' Education & Training Stds Comm 
Sharon Day Herring v Shenffs' Education & Training Stds Comm 
Robert Ryan Hardison v ShentTs' Education & Training Standards Comm 
Tracey Jerome Clark v Sheriffs' Education & Training Standards Comm 
Berry Bernard Baker v Criminal Justice Ed & Training Standards Comm 
Evelyn D Brovvn v Sheriffs' Education & Training Stds Comm 
Kevin Lamar Dorsey v ShentTs' Education & Training Standards Comm 
Willoughby McCormick, Jr v Shenffs' Ed & Training Standards Comm 
Herman Lee Colvin v Sheriffs' Ed & Training Standards Comm 
Ronald Hosea Hodge v Cnminal Justice Ed & Training Standards Comm 
Melvin Garfield Smith v Cnminal Justice Ed & Training Stds Comm 
Paul Harvey Taylor v Cnminal Justice Ed & Training Stds Comm 
Teresa Shavvndell Hunt v Cnminal Justice Ed & Training Stds Comm 
Phillip K McPherson v Sheriffs' Education & Training Standards Comm 
Frankie Arlene Fisher v ShentTs' Ed & Training Standards Comm 
Floyd Lee Hatch v Cnminal Justice Ed & Training Stds Comm 
Tame L Reid v Criminal Justice Ed & Training Stds Comm 

Private Protective Services Board 

Wayne Carey v Private Protective Services Board 
Claims Verification, Inc v Private Protective Services Board 
Walter R Shirer v Private Protective Services Board 
Stacey L Williams v Pnvate Protective Services Board 
Eugene Norman Garrett v Private Protective Services Board 
G. Russell Smith v Private Protective Services Board 
David C Brisson v Private Protective Services Board 
Danny Charles Garrett v Pnvate Protective Services Board 
David C Truesdale v Pnvate Protective Services Board 
Dennis Ray Hyatt v Private Protective Services Board 
Alfred D Malson v Pnvate Protective Services Board 
Rodney Hamilton Marsh v Private Protective Services Board 
Melvin Eugene Davis v Private Protective Services Board 
Glen Leon Fitchette v Pnvate Protective Services Board 
Arvin Itvvaru v Private Protective Services Board 
William Pope v Private Protective Services Board 

LABOR 

Hildreth Mechanical & Maintenance v Labor/Labor Standards 
Labor World, Eric Feinstein v Labor, Harry E Payne, Jr 

BOARD OF MEDICAL EXAMINERS 

Joe D Crawford, M D v Medical Bd of NC Bd of Medical Examiners 



CASE 




DATE OF 


PI BLISHED DECISION 


NIMBER 


ALJ 


DECISION 


REGISTER CITATION 


98 DOJ 1 345 


Owens 


11/19/98 




98 DOJ 1494 


Morrison 


12/10/98 




98 DOJ 1 495 


Smith 


02/05/99 




98 DOJ 1496 


Smith 


12/16/98 




97 DOJ 1236 


Phipps 


07/24/98 




98 DOJ 1060 


Smith 


10/21/98 




97 DOJ 1319 


Phipps 


07/29/98 




97 DOJ 1578'" 


Gray 


08/20/98 




97 DOJ 1698 


Reilly 


06/12/98 




98 DOJ 0022 


Smith 


07/14/98 




98 DOJ 0046 


Gray 


11/04/98 


13 11 NCR 935 


98 DOJ 0121 


Smith 


06/22/98 




98 DOJ 0147 


Smith 


07/16/98 




98 DOJ 0388 


Reilly 


07/24/98 




98 DOJ 0430 


Gray 


07/21/98 




98 DOJ 0431 


Gray 


08/21/98 




98 DOJ 0432 


Becton 


06/08/98 




98 DOJ 0479 


Chess 


10/07/98 




98 DOJ 0491*'" 


Phipps 


01/08/99 




98 DOJ 0526 


Morrison 


09/09/98 




98 DOJ 0574 


Chess 


07/30/98 




98 DOJ 0600 


Morrison 


08/07/98 




98 DOJ 0841 


Phipps 


09/16/98 




98 DOJ 0847'" 


Gray 


08/20/98 




98 DOJ 0875 


Chess 


11/13/98 




98 DOJ 0877 


Mann 


12/30/98 




98 DOJ 0878 


Phipps 


09/08/98 




98 DOJ 0879 


Owens 


08/31/98 




98 DOJ 0907 


Mann 


01/15/99 




98 DOJ 0922 


Mann 


12/22/98 




98 DOJ 0930 


Phipps 


09/22/98 




98 DOJ 1007 


Reilly 


10/13/98 




98 DOJ 1008 


Smith 


01/07/99 




98 DOJ 1058 


Smith 


01/08/99 




98 DOJ 1059 


Gray 


01/04/99 




98 DOJ 1 1 25 


Phipps 


12/30/98 




98 DOJ 1308 


Gray 


02/10/99 




98 DOJ 1 360 


Gray 


01/28/99 




98 DOJ 1421 


Chess 


01/06/99 




98 DOJ 1441 


Reillv 


02/10/99 




98 DOJ 1623 


Chess 


01/13/99 




98 DOJ 0619 


Owens 


11/19/98 




98 DOJ 0848 


Smith 


08/04/98 




98 DOJ 0937 


Morrison 


09/17/98 




98 DOJ 0938 


Morrison 


08/18/98 




98 DOJ 0939 


Morrison 


08/18/98 




98 DOJ 0940 


Owens 


11/19/98 




98 DOJ 0941 


Owens 


11/19/98 




98 DOJ 1081 


Morrison 


09/17/98 




98 DOJ 1082 


Morrison 


12/10/98 




98 DOJ 1139 


Owens 


11/19/98 




98 DOJ 1141 


Morrison 


09/29/98 




98 DOJ 1142 


Owens 


11/04/98 




98 DOJ 1145 


Morrison 


09/22/98 




98 DOJ 1307 


Owens 


11/03/98 




98 DOJ 1493 


Morrison 


12/10/98 




98 DOJ 1 748 


Morrison 


02/09/99 




98 DOL 0903 


Mann 


11/04/98 




98DOL1256 


Gray 


11/05/98 




98 BME 0870 


Owens 


07/30/98 





{ 



PUBLIC INSTRUCTION 



1574 



NORTH CAROLINA REGISTER 



March 15, 1999 



13:18 



CONTESTED CASE DECISIONS 



AGENCY 

Linda & Dann\ Howard for Nikki Howard v Lenoir Ct\ Bd of Ed 
George & Ruth Sinclair for Adam Sinclair v Wake Count\ Schools 

(Special Education Ser%'ices) 
Nicholas Eirschele. By and Through! His Parents. Charles & Kathleen 

Eirschele v Craven Counts Board of Education 
Dewitt Brinson & Elizabeth Brinson v Craven Counts Board of Education 
Gene Edward Lloyd \ Depanment of Public Instruction 
Joseph Hughes Bamngerv Dr Michael Ward. Dept of Public Instruction 
Mrs Phyllis Y Moore v Cumberland Counts Schools 
Lanes Bruce Hamll v State Board of Education 

L K on behalf of her son. J H . as well as on her own behalf v St Bd /Ed 
Joseph J Sarrerro v Department of Public Instruction 
M E and her husband. P E . individually, and on behalf of their son. C E 

\ Bd of Ed for Buncombe Cts a/k/a Buncombe Cts Public Schools, et al 



CASE 




DATE OF 


MMBER 


AU 


DECISION 


97EDC 1047 


Grav 


10/30/98 


97EDC 1233 


Phipps 


08/11/98 


97 EDC 1234 


Phipps 


07/16/98 


97 EDC 1298 


Phipps 


10/26/98 


98 EDC 01 10 


Reillv 


09/10/98 


98 EDC 0127 


Mann 


01/14/99 


98 EDC 0305 


Gras 


08/05/98 


98 EDC 0350 


Smith 


09/17/98 


98 EDC 0370 


Smith 


10/14/98 


98 EDC 0459 


Owens 


08/10/98 


98 EDC 0566 


Gray 


10/01/98 



PIBLISHED DECISION 
REGISTER CITATION 



STATE BAR 

Linda R Sharp v North Carolina State Bar 



98 BAR 1 344 



Momson 



11/09/98 



STATE PERSONNEL 



Department of Administration 

David Grigsby v NC Commission of Indian Affairs 

Department of Agriculture 

William T McClelland V Department of Agriculture 
William T McClelland V Department of Agriculture 

Community Colleges 

Dr William R Strickland v NC Community College System 

Department of Correction 

Annie D Dizon v NC Correctional (Inst ) Center for Women 

Terrs T Rees \ Depanment of Correction 

Mohammad H Baloch, M D v Department of Correction 

Leon Owens v Department of Correction 

Terry T Rees v Department of Correction 

Michael A Smith v Department of Correction 

Michael A Smith v Department of Correction 

Jasne D Bledsoe v Correction. Div of Adult Probation & Parole 

David Spencer Noms v Correction. Div of Adult Probation & Parole 

Carl W Craven. II v Pender Correctional Institution 

ErAin Shaw \ Martin Homer. Asst Super . Corr . Sands Ridge Corr Ctr 

Joseph Szilagsi v Depanment of Correction 

Dennis S Hanell v Dept of Conection. Caledonia Conectional Institute 

Tomms L Hancocks Department of Correction 

Tommy L Hancock v Depanment of Correction 

Bertha Darden \ Rasmond Smith & Dept of Conection. Central Prison 

Robert C Lowder v Brown Creek Conectional Institution 

Ruth Moseles v Department of Cortection 

Lamont M Burt v Department of Conection 

Mark Murphs v Conection. Di\ of Adult Probation & Parole 

Leo Powell v Harnett Conectional Institute. Depanment of Conection 

Amos Boone v Department of Conection 

Nona W Hubbard v DOC. Division of Community Conections 

Robert R Stovall v Department of Conection 

Harold Keith Hamm v Dept of Conection Enterprise/Personnel Off 

Joseph A Hanell v Conection. Div of Adult Probation & Parole 

Bunny M Poindexter v Department of Conection. McCain Hospital 

Deborah Gnffin v Wanen Conectional Institution. Mr Smiles 

Lonnie F McCaskill. Ill v Department of Conection 

Brsant K Peterson v Todd Pinion. Piedmont Con Inst . Asst Sup 

Crime Control and Public Safety 

Roger D Davis v Crime Control & Public Safety, St Hwy Patrol 
Albert R Little v Crime Control & Public Safers. Info Sys Specialists 
Charles A Lindquist s Cnme Control & Public Safety. NC Hw^ Patrol 
Charles A Lindquist v Crime Control & Public Safety. NC Hwy Patrol 
Thomas E Carlton v Crime Control & Public Safety, St Hwy Patrol 

Eastern North Carolina School for the Deaf 

Caths A Lancaster v Eastern North Carolina School for the Deaf 



98 OSP 0428 


Momson 


12/14/98 




98OSPI405*-' 


Reilly 


02/17/99 




98 OSP 1536*-' 


Reilly 


02/17/99 




98 OSP 1305 


Gray 


12/07/98 




97 OSP 0166 


Mann 


11/06/98 




97 OSP 1671*" 


Smith 


06/30/98 




98 OSP 001 4 


Gray 


09/01/98 




98 OSP 0050 


Becton 


07/10/98 




98 OSP 01 19*" 


Smith 


06/30/98 




98 OSP 0231*" 


Reilly 


08/11/98 




98 OSP 03 17*' 


Reills 


08/11/98 




98 OSP 0543 


Owens 


07/29/98 




98 OSP 0572 


Gras 


12/18/98 




98 OSP 0633 


Smith 


06/25/98 




98 OSP 0671 


Phipps 


10/09/98 




98 OSP 0757 


Owens 


10/05/98 




98 OSP 0846 


Momson 


09/08/98 




98 OSP 0881 


Owens 


08/04/98 




98 OSP 0882 


Owens 


10/09/98 




98 OSP 0905 


Smith 


09/25/98 




98 OSP 0984 


Owens 


12/02/98 




98 OSP 1092 


Gray 


10/07/98 




98 OSP 1 1 1 5 


Smith 


10/06/98 




98 OSP 1155 


Mann 


12/21/98 




98 OSP 1 1 75 


Owens 


11/25/98 




98 OSP 11 88 


Smith 


12/15/98 




98 OSP 1214 


Owens 


10/27/98 




98 OSP 1282 


Phipps 


10/26/98 




98 OSP 1409 


Gray 


12/16/98 




98 OSP 1411 


Gray 


12/11/98 




98 OSP 1566 


Smith 


02/09/99 




98 OSP 1583 


Chess 


01/07/99 




98 OSP 1597 


Momson 


02/16/99 




98 OSP 1787 


Owens 


02/15/99 




97 OSP 061 7 


Chess 


05/27/98 




97 OSP 1157 


Momson 


07/22/98 




98 OSP 01 70 


Gra> 


01/22/99 


13 18 NCR 1592 


98 OSP 0341 


Gray 


01/22/99 




98 OSP 091 9 


Phipps 


09/24/98 




98 OSP 0482 


Gray 


11/30/98 





Employment Security Commission 



13:18 



NORTH CAROLINA REGISTER 



March 15, 1999 



1575 



CONTESTED CASE DECISIONS 



AGENCY 

Jane B Bolm and Arlene G Sellers v Hmploytnent SecLirit\ Commission 
Jane B Bolm and Arlene G Sellers v Employment Secunt\ Commission 

Environment and Natural Resources 

Charles Anthony Bruce v ENR, Division of Parks and Recreation 

Patrick K W Howie \ Department of En\ ironment and Natural Resources 

Health and Human Services 

Velma Harper v Dept of Health & Human Services, Caswell Center 

Annette Honea v Department of Human Resources 

William David Simpson v Macon County Board of Health 

Angela M Miles v Cumberland Counts Department of Social Services 

Shung Fung-Chin v Department of Human Resources, Caswell Center 

Walker Cannon v DHR/Caswell Center 

Chanty Swick v Cumberland County Department of Social Services 

Yolandra Best and Roy Hudson v DHHS. John Umstead Hospital 

Yolandra Best and Roy Hudson v DHHS. John Umstead Hospital 

Donald Ras Ebron \ Department of Human Resources 

Kenneth Dippel v Columbus County Dept of Social Services 

Fred Foster, Jr v Department of Health and Human Services 

Donald Ray Ebron v Department of Human Resources 

Shung Fung-Chin v Department of Human Resources. Caswell Center 

Ruth Holroyd v Montgomery Cty DSS. Children's Services 

Tilda D Whitaker v Nash County Health Department Board of Directors 

Fred Foster, Jr v Department of Health and Human Sen-ices 

James W Crews v DHHS. Murdoch Center 

Patricia R Quick v DHHS, Dorothea Dix Hospital 

Angela M Miles v Cumberland Countv Department of Social Services 

Delores Laveme Rich v Health & Human Services. Dorothea Dix Hosp 

Elwin C Munson v Health & Human Services. Juvenile Evaluation Center 

Fred Foster, Jr v Department of Health and Human Services 

Jackie M Sinclair v Duplin-Sampson Area Mental Health DD, SAS 

David A Kilpatrick v Health & Human Services, Caswell Center 

Fred Foster. Jr \ Department of Health and Human Services 

Laura Blanton v Cleveland Center 

Anthony M Ruiz v Department of Health & Human Svcs, Youth Svcs 

Rudolph Waters v DHHS. Youth Services. Dobbs School 

Euwell Falconer v Karen A Andrews. Gaston-Lincoln Area Mental Health 

Jeffrey L Williams v Dorothea Dix Hospital 

Delores Laveme Rich v DHHS. Dorothea Dix Hospital 

Barbara Jean Paquette v Durham County (respondeat superior for the 

Durham County Public Library ) 
Linda Paige v Center Point Human Services Forsyth Mental Health 

Forsyth Industrial Systems 
Stanley K Strong v Jimmy Summerxille. Dobbs School, Youth Svcs 
Derrick Skinner v Health & Human Services, Cherry Hospital 
Kelvin J Leeks v Cumberland Cty Mental Health & Sub Abuse Facility 
Paul L Long V Department of Health & Human Services 

Department of Insurance 

Patricia Casey Rollins v Department of Insurance 

Department of Justice 

Linda Margaret Koss v State Bureau of Investigation 
Marvin Shertiel Clark v Department of Cortection 
and 
Marvin S Clark v Criminal Justice Ed & Training Stds Comm 



CASE 




DATE OF 


PI BLISHED DECISION 


NUMBER 


AU 


DECISION 


REGISTER CITATION 


97 0SP 1122'' 


Chess 


06/02/98 




97 0SP 1134*' 


Chess 


06/02/98 




98 OSP 0240 


Reilly 


06/08/98 




98OSP1240 


Reilly 


02/11/99 




96 OSP 0109 


Chess 


02/02/99 




96 OSP 0833 


Chess 


08/24/98 




97OSP0167 


Chess 


01/27/99 


13 17 NCR 1488 


97 OSP 061 3*' 


Gray 


07/10/98 




97OSP0638»'" 


Chess 


08/13/98 




97 OSP 0731 


Phipps 


11/30/98 




97 OSP 0775 


Gray 


07/10/98 




97 OSP 0862*" 


Chess 


08/13/98 




97OSP0863»" 


Chess 


08/13/98 




97 OSP 0881*-- 


Phipps 


02/09/99 




97 OSP 0905 


Gray 


11/09/98 




97 OSP 1287*'- 


Smith 


08/20/98 




97 OSP 1406*-- 


Phipps 


02/09/99 




97 OSP 1530"" 


Chess 


08/13/98 




97 OSP 1586 


Smith 


05/27/98 


13 02 NCR 257 


97 OSP 1665 


Gray 


12/02/98 




97 OSP 1701 •'■ 


Smith 


08/20/98 




98 OSP 0060 


Gray 


07/20/98 




98 OSP 0061 


Becton 


07/16/98 




98OSP0084*' 


Gray 


07/10/98 




98 OSP 0120 


Gray 


07/08/98 




98 OSP 0140 


Phipps 


10/28/98 




98 OSP 0187"- 


Smith 


08/20/98 




98 OSP 0252 


Smith 


12/31/98 




98 OSP 0271 


Owens 


08/13/98 




98 OSP 0403"- 


Smith 


08/20/98 




98 OSP 0453 


Smith 


10/02/98 




98 OSP 0454 


Gray 


06/04/98 




98 OSP 0474 


Morrison 


07/30/98 




98 OSP 0538 


ReilK 


08/06/98 




98 OSP 0595 


Becton 


07/22/98 




98 OSP 0763 


Gray 


12/02/98 




98 OSP 0765 


Morrison 


08/05/98 




98 OSP 0819 


Smith 


11/05/98 




98 OSP 1017 


Gray 


1 2/07/98 




98 OSP 1035 


Gray 


09/21/98 




98 OSP 1037 


Morrison 


02/11/99 




98 OSP 1202 


Owens 


12/16/98 




95 OSP 0729 


Chess 


12/14/98 




97 OSP 01 89 


Chess 


08/14/98 




98 OSP 0300"" 


Phipps 


01/08/99 





i 



Department of Public Instruction 

Lillie Bumette Pearsall v Wayne Cty 
Mr Steve Tavlor 



Bd of Ed . Mrs Veda McNair and 



98 OSP 0944 



Smith 



08/25/98 



Secretary of Slate 

Jonathan M Demers \ Department of Secretary of State 

Department of Transportation 

Pasquale Vendettuoli v Deparrment of Transportation 
Johnny O Shivar v Department of Transportation 
Teresa G Mitchell v Department of Transportation 
Larry W Davis v Department of Transportation 



97 OSP 1018 


Becton 


07/07/98 


13 03 NCR 


343 


97 OSP 1090 


Momson 


12/19/98 






97 OSP 1366 


Reilly 


09/01/98 






97 OSP 1565 


Smith 


12/09/98 






98 OSP 0241 


Gray 


07/08/98 







Consolidated Cases. 



7576 



NORTH CAROLINA REGISTER 



March 15, 1999 



13:18 



CONTESTED CASE DECISIONS 



Shem Lynn Noles v Department of Transportation-NCDMV 

Clarice Goodwin Anhur v Depanment of Transportation, Femes Division 

Robert L Suinnes \ Department of Transportation 

University of North Carolina 

Joseph A BPiant v North Carolina A & T University' 

Joseph A Bryant v North Carolina A & T University 

Douglas Lo\e. Jr v LrNC Hospitals 

Deborah J Fenner v NC Central University 

Joyce M Smith \ North Carolina Central University 

Hdwin Swam v University of North Carolina at Chapel Hill 

Patncia A G Roberts v Asst /Chan /Qty Mgmt /Dir Human Res LFNCW 

Leo Watford, Roosevelt Partis, Claiborne Baker, et al \ University of 

North Carolina at Chapel Hill 
Johnny Johnson, Jr v A & T St University Student Union-Grievance Bd 
Jessie L Johnson v Bernard K Locklear, UNC at Pembroke 
Jonathan L Fann v North Carolina State University Physical Plant 
Greta M Hawthorne v University of NC at Pembroke 
Robert W Brinson v NC State University 
Alberta .\ Ingram-Peterson v NC Central University 
Leslie Wright \ NC State University 
Thomas H Hastye, III v NC A & T State University 
Fred T Jackson v LrNC-Charlotte Recreational Facilities 
Betty Parks v Winston Salem State University 
Ronnie Bell v Dave Hillard. UNC at Charlotte 
Brenda D Moore v Atty Wanda Jenkins, Fayetteville St Llniversity 
Joseph Cartoll Goodlake v UNCA 

STATE TREASl RER 

Hugh A Wells v Consolidated Judicial Retirement System of NC, 

Bd of Trustees Teachers and State Employees' Retirement System 
Walter Williams v Bd of Trustees NC Local Gov Emp Retirement Sys 



TRANSPORTATION 

David Warten Dew et al 



V Motor Vehicles. Alexander Killens Comm 



I NIVERSIT^ OF NORTH CAROLINA 

Patricia D Hall v University of North Carolina at Chapel Hill 
Ladonna P James v UNC Hospitals 
Joyceline Sellars v LINC Hospitals 



98 OSP 0269 


Chess 


98 OSP 0864 


Phipps 


98 OSP 0969 


Gray 


96 0SP1698*"' 


Mann 


97 OSP 0242*'" 


Mann 


97 OSP 0662 


Reilly 


97 OSP 0902 


Chess 


97 OSP 1297 


Smith 


97 OSP 1694 


Mortison 


98 OSP 0178 


Phipps 


98 OSP 0254 


Chess 


98 OSP 0299 


Owens 


98 OSP 0444 


Gray 


98 OSP 0465 


Becton 


98 OSP 0831 


Chess 


98 OSP 0887 


Owens 


98 OSP 1024 


Smith 


98 OSP 1088 


Smith 


98 OSP 1114 


Reillv 


98 OSP 1216 


Smith 


98 OSP 1278 


Chess 


98 OSP 1330 


Smith 


98 OSP 1506 


Smith 


98 OSP 1 535 


Phipps 


98DST0316 


Mortison 


98 DST 0774 


Smith 


95 DOT 1 1 44 


Gray 


98 UNC 0397 


ReilK 


98 UNC 0591 


Becton 


98 UNC 1113 


Smith 



08/11/98 
09/24/98 
02/09/99 



12/02/98 
12/02/98 
06/08/98 
05/29/98 
06/25/98 
07/31/98 
10/08/98 
07/17/98 

09/02/98 
09/29/98 
07/17/98 
09/11/98 
08/10/98 
10/14/98 
02/03/99 
12/30/98 
10/22/98 
11/25/98 
11/10/98 
01/25/99 
01/07/99 



06/05/98 
12/08/98 

06/04/98 



08/20/98 
07/20/98 
10/22/98 



13 01 NCR 166 



13:18 



NORTH CAROLINA REGISTER 



March 15, 1999 



1577 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF MCDOWELL 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

98 ELS 0099 



Kenneth D. Suttles 
Suttles Surveying, P. A. 
Petitioner, 



N.C. State Board of Registration for Professional 
Engineers and Land Surveyors 
Respondent. 



PROPOSAL FOR DECISION 



This contested case was heard before Juhan Mann, III, Chief Administrative Law Judge, on Thursday and Friday, November 
12-13, 1998, in the Burke County Courthouse, Morganton, North Carolina. 

APPEARANCES 



For Petitioner: 



Arch T. Allen, III 

Allen & Moore. L.L.P. 

P.O.Box 18627 

Raleigh, North Carolina 27619-8627 

Attorney for Petitioner 



Everette C. Cames 
Cames & Franklin, P.A. 
103 South Main Street 
Marion, North Carolina 28752 
Attorney for Petitioner 



For Respondent: 



Wright T. Dixon, Jr. 

Bailey & Dixon, L.L.P. 

PO. Box 1351 

Raleigh, North Carolina 27602 

Attorney for Respondent 



WITNESSES 



For Petitioner: 



Ken Suttles, Petitioner 

Harvey Barron 

Carl Bunton (Expert Witness) 



For Respondent: 



Oliver Carswell 

Larry Ballew 

Andrew Ritter 

George Paris (Expert Witness) 

Bobby Long (Expert Witness) 



EXHIBITS 



For Respondent: 



Exhibits #1. #2, #3, #4. #5. #6, #7, #8. #9, #10. #1 1, #12, 
#13, #14, #14A, #14B, #15, #16, #17, #18, #19, #20, #21, 
#30, #31, #32, #33; PI, P2, P3, P4, P5, P6, P7, P8, P9, 
and P 10. 



For Petitioner: None 



1578 



NORTH CAROLINA REGISTER 



March 15, 1999 



13:18 



CONTESTED CASE DECISIONS 



STIPULATED FACTS 

Taken from Order on Final Pre-Hearing Conference filed on November 12. 1998: 

1 . It is established that all parties are properly before the Office of Administrative Hearings and that the Office of 
Administrative Hearings has jurisdiction over the parties and of the subject matter. 

2. It is established that all parties have been correctly designated and there is no question as to misjoinder or nonjoinder 
of parties. 

3. In addition to the above established facts contained herein, the following undisputed uncontroverted facts are 
established: 

a. Petitioner ("Suttles") is a registered land surveyor. He conducted a land survey for one Oliver 
Carswell ("Carswell") regarding land in Morganton Township, Burke County, North Carolina, in 1996. The land 
included two tracts conveyed to Carswell by Deeds. 

1. Deed, dated 18 July 1969, recorded in Book 347, page 358, Burke County 
Registry, with a deed description as follows: 

" SECOND TRACT: BEGINNING at a stake and running North 5 degrees East 162 feet to a 
stake; Thence South 67 degrees West 363 feet to a stake; Thence East 351 feet to the 
BEGINNING Comer. And Containing Seven Tenths (7/10) Acres." 

2. " First Tract 

BEGINNING at the North of property and running North 49 degrees East 300 feet to 
a stake; Thence South 5 degrees East 85 feet to a stake; Thence South 4 degrees 30' West 246 
to a stakes; Thence South 1 degree 00' East 49 feet to a stake; Thence South 56 degrees West 1 02 
feet to a stake; Thence North 30 degrees West 345 feet to the BEGFNNFNGS Comer. Containing 
1 and 55/1 00 Acres." 

b. Carswell filed charges against Suttles concerning the survey with Respondent (the "Board") by 
letter dated 9 July 1997. 

c. The Board wrote Suttles a letter dated 28 August 1 997 about the Carswell charges and the Board's 
investigation of them. 

d. Suttles responded to that letter by letter dated 1 5 September 1 997. 

e. The Board by letter dated 12 December 1 997 informed Suttles of a Notice of Contemplated Board 
Action dated 1 1 December 1997 and provided him with a copy of it. 

f. A Settlement conference was tentatively scheduled for 30 December 1 997. and Suttles' attorney. 
Everette C. Games, wrote the Board by letter dated 1 7 December 1997 requesting, among other things, writings 
from Carswell to the Board related to Suttles' survey. 

g. The Board responded by letter dated 1 8 December 1 997 and. among other things, declined to 
fumish the requested writings. 

h. Games replied to the Board by letter dated 22 December 1 997. 

i. By letter dated 23 December 1997, the Board provided Games with a copy of Carswell's letter 

dated 9 July 1997. 

j. The Board constituted a Review Committee consisting of Ray E. Anders. Larry D. Bamett. Jerry 



13:18 NORTH CAROLINA REGISTER March 15, 1999 1579 



CONTESTED CASE DECISIONS 



T. Carter, and David S. Tuttle. which recommended that the Board issue a reprimand "for failing to report the 
results of a survey in a clear and factual manner [.1602(e)]." 

k. Suttles requested a Settlement Conference, and a Settlement Conference was held on 5 January 

1997. Members of the Board's Settlement and Review Committee were Ray E. Anders, Larry D. Bamett, Jerry T. 
Carter, and Wright T. Dixon, Jr It recommended that the Board issue a reprimand "for failing to report the results 
of a survey in a clear and factual manner [.1602(e)]." 

1. On 2 1 January 1 997, the Board issued its Citation for Hearing "for failing to report the results 

of a survey in a clear and factual manner in violation of Board rule 2 1 NC AC 56. 1 602(e)." 

m. The correct year of the survey at issue of the first survey is 1996, not 1995. Copies of the Maps 

of survey are listed below as Exhibit 3, a copy of "Survey for: Oliver Carswell" dated 7 May 1996 and revised 27 
June 1996 [same as Carter Deposition Exhibit 6A], and Exhibit 4, a copy of "Survey for: Oliver Carswell" dated 
7 May 1996 and revised 27 June 1996 and 28 November 1997 [same as Carter Deposition Exhibit 6]. 

4. This matter became a contested case upon Respondent filing a Citation for 

Hearing with the Office of Administrative Hearings. 

[Other Stipulations are contained in the Prehearing Order and are incorporated herein by reference] 

Based upon the foregoing Stipulations and the greater weight of the evidence, the undersigned makes the following: 

FINDINGS OF FACT 

1 . Kenneth Suttles (hereinafter "Petitioner") is a registered land surveyor, seal number L-2678. At all times relevant 
herein. Petitioner was a licensed surveyor in the State of North Carolina, doing business under the name of Suttles Surveying, P.A., 
in both Marion, McDowell County, and Morganton, Burke County, North Carolina. 

2. Respondent is a professional licensing board created under Chapter 89C of the North Carolina General Statutes 
with its principal headquarters in Raleigh, Wake County, North Carolina. 

3. During the year 1996, Petitioner conducted a boundary survey for Oliver Carswell (hereinafter "Complainant") for 
land owned by Complainant in Morganton Township, Burke Count>, North Carolina. Petitioner, through Suttles Surveying, P.A., 
prepared a survey (Exhibits #3 and #4). 

4. As a result of a dispute that arose between Complainant and Petitioner as to this survey. Complainant, by letter of 
July 9, 1997, filed charges with Respondent regarding this survey. Complainant writes, in part, as follows: 

In December of 1995 Mr. Suttles of Suttles' Surve\ ing approached me about signing over a right of way 
to an owner of an adjacent property. At that time 1 told Mr Suttles that I wanted to have my property run-out 
because I believed that some of the land owners of adjacent properties had already taken more than enough of my 
property without my permission. This property was used to build their road, which at the time of construction was 
not a state owned road, but a private drive. At that time Mr Suttles offered his services to me. 

Mr. Suttles and I agreed for him to survey my property. He said due to prior obligations he would be 
unable to surve> my property until after the first of 1996. 1 agreed with that as I would be out of town until then 
and as I told him I wanted to be there when he did the survey. 

When I returned home Mr Suttles had already finished the survey. He had the bill and the Map ready. 
On inspection of the stakes on my property 1 noticed several inconsistencies. Specifically on the piece of property 
where the deed calls for 7/10 of an acre. Where Mr Suttles' Map is only 5/10 an acre. The deed calls for 162 feet 
of road front property. Mr. Suttles' Map reads 147.99 feet (this number appears nowhere on the deed). 1 informed 
Mr Suttles of what I thought to be wrong. He told me that I didn't own the 2/10 acre missing from his Map. He 
further stated that no one owned the land. 1 don't understand this as no one has contacted me that m\ deed was 
wrong or that part of my land was being taken for some use, and no one has spoken to be about purchasing my land. 
(Attached to Exhibit #19). 



1580 NORTH CAROLINA REGISTER March 15, 1999 13:18 



CONTESTED CASE DECISIONS 



5. Respondent, through its Investigation Supervisor, Andrew Ritter, wrote to Petitioner by letter of August 28, 1 997, 
and states, in part, the following: 

Charges have been filed with the Board which allege that you may be in violation of G.S. 89C. and the 
Standards of Practice for Land Sun-eying in North Carolina. Specifically, the charges allege that for a survey 
entitled "SURVEY FOR: OLIVER CARSWELL", dated 27th day of June 1995, that survey was inaccurate 
creating an encroachment on the adjoining property [.1602(a)(e)] or that survey failed to report and show a lappage 
[.1602(a)(c)]. (Exhibit #1) 

6. By letter dated September 15, 1997, Petitioner responds to the Board's previous letter quoted, in part, as follows: 

1 made an accurate survey of Mr. Carswell's property which is clearly and graphically shouTi on a Map 
dated June 27, 1996. The Map shows five tracts of land located in Morganton Township, Burke County, North 
Carolina. 

Mr. and Mrs. Carswell purchased three tracts of land which are shown in deed book 347, page 358 of the 
Burke County Registry. The other two tracts can be found in deed book 840, page 1116 and deed book 686, page 
603. 1 have enclosed a copy of this deed. The tract that is in question is tract #2. 

Please note that this tract is not physically tied to anything, nor does the deed describe any point as being 
a deed comer of any adjacent deed. The only things we know about this tract located in Morganton Township, 
Burke County, is that it contains 7/10 acres and was conveyed to Mr. and Mrs. Carswell by Mr. Carswell's mother- 
in-law, Annie Lou Mull, a widow who is now deceased. 

1 checked the closure of this deed and its error of closure is very poor. The actual error in deed is 36.63 
feet. A diligent search was made for evidence on the ground. We were assisted in this search by Mr. Carswell but 
no comer stakes were found. We were able to find some stakes on another tract that Mr. Carswell owned which 
is recorded in deed book 111, page 377. We placed this tract on the ground, which had some common comer as 
stated by Mr. Carswell, who was familiar with the purchases. The second tract of deed book 347, page 358 had 
no deed comers to work from. Mr. Carswell's sister in law owns a tract across the road from Mr. Carswell's tract 
#2, which she had purchased previously to the purchase made by Mr. and Mrs. Carswell of their tract. 

After researching the tract across the 1 5 foot gravel road, it was found that a survey had been made by Mr. 
Fred Wilkie dated July, 1969 and captioned. Mrs. Mull Property, Burke County. North Carolina. This survey 
revealed an access roadway being located directly north of Mr. Carswell's property. It also showed a bearing of 
North 67 degrees East and a distance of 362 feet to some kind of another road which was proved to be Burkemont 
Road. State Road 1957. Please refer to the second call in tract #2 of deed book 347, page 358, which shows a 
bearing of South 67 degrees West and a distance of 363 feet. This deed has the same bearing as the Plat prepared 
by Fred Wilkie and the distance is only one foot different. This gave a criteria now to establish the north line of 
tract #2 of Mr. Carswell's deed. The south is now established by Mr Carswell's deed as recorded in deed book 111, 
page 377. (Exhibit #2) 

7. By letter dated December 12, 1997, Respondent, through its Executive Secretary Jerry T. Carter, forwarded a letter 
to the Petitioner with the following statement: 

As you are aware, the North Carolina State Board of Registration for Professional Engineers and Land 
Surveyors (hereinafter Board) has recently conducted an investigation conceming a survey entitled "SURVEY 
FOR: OLIVER CARSWELL", dated 27th day of June 1995, bearing your certification. After a thorough 
consideration of the investigative materials, the Board's Review Committee has determined that there is sufficient 
evidence that you are in violation of G.S. 89C-2 1 by failing to report the results of a survey in a clear and factual 
manner [.1602(e)]. Attached please find a NOTICE OF CONTEMPLATED BOARD ACTION advising you that 
the Board will issue you a reprimand for this act unless you request a hearing within twenty (20) days of receipt 
of this notice by certified mail addressed to the Board. (E.xhibit #15) 

8. By letter dated January 21, 1998, Respondent forward by certified mail to Petitioner a citation for hearing alleging 
the followmg: 



13:18 NORTH CAROLINA REGISTER March 15, 1999 1581 



CONTESTED CASE DECISIONS 



WHEREAS, the North Carolina State Board of Registration for Professional Engineers and Land 
Surveyors issued NOTICE OF CONTEMPLATED BOARD ACTION UNDER SECTION .1403, CHAPTER 56 
TITLE 21, NORTH CAROLINA ADMINISTRATIVE CODE dated December 11, 1997, to Kenneth D. Suttles, 
RLS, No. L-2678; and whereas as provided in said notice, Kenneth D. Suttles, after a settlement conference has 
requested a hearing, the purpose of which is to determine whether he is guilty of gross negligence, incompetence 
or misconduct in the practice of his profession in the preparation of a survey entitled "SURVEY FOR: OLIVER 
CARS WELL", dated 27th day of June 1 995 by: 

failing to report the results of a survey in a clear and factual manner in violation of Board rule 
21 NCAC 56.1602(e). 
(from pleadings) 

9. Pursuant to an order entered by the undersigned herein. Respondent, through counsel by pleading dated 1 5 July, 
1998, filed a more definite statement of charges as follows: 

Board Rule 21 NCAC 56.1602(e) was violated By Mr. Suttles as follows: 

Mr. Suttles reports on the face of the Carswell survey within the eastern (triangular) tract: 

"This tract would not close mathematically. The Southwest comer was established and the deed 
angle was used to establish the North line of this tract." 

With this statement, Mr. Suttles has utilized this common deficiency found in other deeds/siirveys as justification 
to ignore the extant deed description and the intent of the grantor of the property. 

Further Mr. Suttles failed to show disputed property lines and Mr. Carswell's claim of occupation, on his survey 
Map, and, 

Reports a general easement as an enlarged right-of-way without supporting documentation 

a. Expanding a northern easement into Mr. Carswell's property. 

b. Presuming a public dedication of land that did not exist. 

c. Relying on an unpublished and unregistered survey 

d. Ignoring or denying Mr. Carswell's possession of land. 

Reports a boundary-line agreement without consent of parties 

a. Completing a "final survey" and then telling his client he needed an attorney (To solve 
the "problem" that doesn't appear on the survey) 

b. (Based on his own action of moving Mr. Carswell's eastern (triangular) line, south) 
maintaining that "no one owned the tract" shown as right-of-way 

c. Report removing landmarks, which, in themselves, deny a boundary line agreement. 

d. Being aware of problems with the boundaries but not reporting it: his survey reflecting: 
"No problem here" 

Attempting to absolve himself by improperly reporting the following disclaimers 
when his seal and signature alTirm that the Map is a correct delineation of the 
properties set forth thereon: 

a. "No title search conducted at time of survey" 

b. "Property is subject to any rights of way easements of record, or retroactive covenants." 

c. "This survey does not certify legal title to the land itself nor the boundaries shown 
hereon." 

d. "Users of this Plat should obtain a current legal title opinion of ownership of the 
boundaries." 

10. The Oliver Carswell survey (Exhibit #3) included five tracts of land as recorded in Book 347, page 358. Burke 
County Registry (Exhibit #5), Book 111, page 377. Burke County Registry (E.xhibit #6), Book 840. page 1116. Burke County Registry 
(Exhibit #13). Book 686, page 603, Burke County Registry (Exhibit #12), and Book 363, page 684, Burke County Registry (Exhibit 



1582 NORTH CAROLINA REGISTER March 15, 1999 13:18 



CONTESTED CASE DECISIONS 



#9). The tract in question is bounded on the north by a 30' access road, the propertv of Elsie Mull, Deed Book 347, page 248; and 
Edith Mull Peeler and husband James Peeler, Deed Book 363, page 664; on the west by the property of Raymond D. Church and wife 
Lisa B. Church. Deed Book 832, page 1892; on the south by the property of Harvey C. Barron and wife Patricia M. Barron. Deed 
Book 369, page 671 and Rebecca N. Miller. Deed Book 846, page 1274 and the Mull Grove Baptist Church (deed references omitted); 
and on the east by the Burkemont Road, State Road 1957. 

1 1 . Complainant resides in his residence on the homeplace tract (Deed Book 111, page 377) which is noted on the 
survey as a "Frame House." Complainant has lived in this house since 1949. 

12. The gravel road, which runs along the northern boundary is identified as the TS. Mull Road (P3), and was graded 
in 1969. The Burkemont Road (S.R. 1957) on the eastern boundary was built in 1955. 

13. In 1994, Petitioner surveyed the land along the western boundary of the Carswell's tract, shown as the Raymond 
D. Church and wife Lisa B. Church tract on Exhibit #3. Petitioner surveyed the land and requested, on behalf of the Church's, a right- 
of-way of ingress and egress to the Burkemont Road. The right-of-way sought ran through a portion of the survey now in contention. 
In 1994, Petitioner approached Complainant about getting a right-of-way for this land and Complainant had told him "no." (Tr. V. 
1. p. 78) Later. Petitioner, after the completion of the Carswell survey (Exhibit #3), told Complainant that he had no rights in the 
gravel road. In the Complainant's mind. Petitioner's previous statement was inconsistent with his later assertion that Complainant had 
no interest in the gravel road. (Tr. V. I, pp. 79-80) 

14. Petitioner, in 1994. obtained the right-of-way for the Church's from Elsie Mull on her side of the gravel drive and 
at the same time secured a copy of the unregistered Wilkie Map. (Exhibit #14) 

15. Some two decades after the gravel road was in use, a disagreement arose between the Complainant's wife's brother- 
in-law, James Peeler, and the Complainant, over the land Complainant was maintaining as part of the triangular tract (Deed Book 347, 
page 358). 

16. On or about September 6, 1 995, Complainant called Petitioner's business office. Complainant indicated that he was 
having some problems with an adjoining owner (Peeler) and that he wanted to establish his comers so he would know where his 
boundary lines were. Based on that conversation. Petitioner made preparations to perform a boundary survey. 

17. Before performing the survey. Petitioner (during the time of their initial conference), actually walked the property 
lines with the Complainant. (Tr. V. 1 1, pp. 239-240) 

18. Petitioner secured all of the deeds in question from the Burke County Registry and sketched, nearly as possible, 
what the deeds actually laid out. Complainant was not sure of how the tracts fit together. Petitioner first made a composite Map of 
the deeds but found the descriptions in the deeds to be vague. (Tr. V. 2, p. 243) 

19. Petitioner, as part of the survey, mailed out notification of his survey to the surrounding property owners in order 
to give them an opportunity to respond or comment. None of the surrounding property owners availed themselves of this opportunity. 
(Tr. V. 2, p. 240) 

20. After making the composite of the descriptions Irom the deeds. Petitioner then performed a physical survey. (Tr. 

V. 2, p. 243) 

21 . Petitioner surveyed the property from the existing evidence on the ground. He located the improvements on the 
ground and the State Road. He located the gravel road along Complainant's northern boundary line. (Tr. V. 2, p. 244) 

22. TTiere are no deed references to a road or a gravel road but there is clearly a reference to a 30' strip on the Wilkie 
Plat (Exhibit #14) and thereafter evidenced by the fact that the road is in existence and utilized. 

23. Mr. Paris testified as to the relationship between the 30 foot strip as follows; 

I know it would overlap what's designated on the Wilkie Map as the 30-foot strip, 
which would be the access into the property. Whether the 30-foot access and the 
road today appear in conjunction with each other, I would assume that to be true. 



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(Tr. V. 2. p. 392) 

24. The 30 foot access road on the northern boundary was derived from the Wilkie Plat. (Exhibit #14) The Wilkie Plat 
indicates that the width of this right-of-way is 33 feet but the Petitioner's Map (Exhibit #3) shows only a width of 30 feet. The 
difference is explained that the 33 feet on the Wilkie Map is at a skew and if the distance is measured at right angles the true 
measurement is 30 feet. Also noted on Petitioner's Plat (Exhibit #3) is the statement: "30' RIGHT OF WAY ACCORDING TO 
PLAT REFERENCE (SEE SURVEY BY FRED WILKIE DATED JULY 1969)". (Tr. V. 2, pp. 298-299) 

25. When asked a hypothetical question which assumed that the Complainant's contention as to the length of the 
northern line of the triangular tract was correct and whether or not this assumption would have an affect on the northern boundar>. 
Carl D. Bunton. R.L.S., believed it would create an overlap or encroachment on the 30 foot access road. 

26. Most of the physical evidence as to the comers was located along the southern and western boundary line. (Tr. V. 
2, p. 247) 

27. The existing iron pipes and monuments are depicted on the survey as shown in the legend (Exhibit #3). The points 
established by the Petitioner are also shown in the legend. 

28. From the physical evidence located on the ground, the iron pins and other evidence determinative of the property 
lines found by his field crew. Petitioner brought this information back to his office and he and his field crew began to analyze the 
information that had been collected. From this data, a composite deed plat was created. (Tr. V. 2, p. 247) 

29. From the existing iron pipe in the northwestern comer of the westem fract (Deed Book 363. page 684) (which is 
a common comer with the Raymond Church property surveyed by Petitioner earlier), using the relevant deed descriptions and 
information from his earlier survey of the adjoining Raymond Church property. Petitioner established the northem boundary line of 
the westem tract and its intersection with the westem line of the home place tract (Deed Book 111, page 377). He set a 1 inch pin 
at the point. From that point, he extended the westem line of the home place tract northerly for 45' as shown on line "L8". He set 
a 1 inch iron pin at that point, which he established as the northwest comer of the home place tract in common with the westem comer 
of the friangular tract (Deed Book 347, page 358) 

30. Petitioner was not able to locate any existing iron pipes or monuments in the triangular tract (Deed Book 347. page 
358). However, Petitioner had secured from Elsie Mull, an unrecorded survey dated July of 1969, and prepared by Registered 
Surveyor, Fred A. Wilkie (Exhibit #14) as previously referenced above. 

3L Starting from the existing iron stake at the southwest comer of the home fract, (Deed Book 111, page 377), and 

thereafter moving from that point in a southerly direction 246.33' to another existing iron stake, which is noted as "Existing 1 1/2" 
fron Pipe 4th Comer of Deed Book 363, page 684" on Exhibit #3 and which is the southwest comer of the Harvey C. Barron and wife 
Patricia M. Barron property. Petitioner's survey shows a measured distance and direction almost identical, i.e., within 33/100 of a foot, 
with the distance shown by Fred A. Wilkie on his unrecorded Plat dated July of 1969 (Exhibit #14). This line is the westem boundary 
line of Harvey C. Barron and wife Pafricia M. Barron's property shown on Deed Book 369, page 671 (Tr. V. 2, pp. 254-255) 

32. From this existing point. Petitioner, based upon the angle and the distance (85') found in the Wilkie Plat of 1969 
(Exhibit #14), established an iron pipe which coincides with the northeast comer of the westem tract (Deed Book 363, page 684). 
From that established point, moving in a northerly direction along "L8", Petitioner established the northwest comer of the home tract 
(Deed Book 1 1 1, page 377), which was a point 45' north of the northeast comer of the westem tract and also a point consistent with 
the Wilkie Plat of 1969 (Exhibit #14) (Tr. V. 2, pp. 255-256). The northwest comer of the home place tract is also the common comer 
with the westem point of the triangular tract (Deed Book 347, page 358). 

33. From that common point established as the westem point of the triangular fract (Deed Book 347, page 358), 
Petitioner, by tuming the deed angle and following the deed angle, established the northem line N 67° 55' 34" E 363.00' and also 
established the northeast comer of the friangular tract. (Tr. V. 2, pp. 257-258) 

34. Complainant believed that there had once been a stake in the northeastem comer of the triangular tract prior to 1 969, 
but that when the gravel road was graded in 1969, the bulldozer doing the grading must have removed or covered it. Complainant's 
contention as to the location of the northeastem comer of the triangular tract (Deed Book 347, page 358), is that this comer extends 
onto the southem shoulder of the gravel road and Complainant contests the point established by Petitioner whereas Petitioner's survey 
determined that it is in the ditch along the southem side of the gravel road. 

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35. From the northeastern comer of the triangular tract. Petitioner surveyed the direction and distance from that point 
to a point in the home place tract and established the "BEGINNING Comer" in the deed description (below) to the triangular tract. 

36. The triangular tract. Deed Book 347, page 358, was conveyed to Complainant by deed on July 1 8, 1969, with the 
following deed description: 

SECOND TRACT beginning at a stake and running north five degrees east 162 feet to a stake; Thence South 67 
degrees West 363 feet to a stake; Thence East 351 feet to the BEGFNNING Comer. And containing Seventh 
Tenths (7/10) Acres. 
(Exhibit #5) 

37. When plotting the deed description, the northern line of the triangular tract. Deed Book 347, page 358, will not close 
mathematically with the beginning point. Concerning this point. Petitioner testified as follows: 

In looking at the triangular piece of land that is in question here and the northeast comer that's in question, when 
this particular tract of land was plotted out. when it came back to the point of origin, it overlaps itself by 29.27 feet 
to the east, h also misses this beginning comer 19.62 feet to the north. Now, what all that means is if you take the 
parcel and use the evidence along the northern line, which was shown on the Wilkie Plat, and you used the two 
angles, you used the angle at the northeast comer and tumed the angle, then you will intersect back into that line 
at 142.38 feet. That's based solely upon the deed. 

If you'll notice on Exhibit 4A, the distance is 148.05 feet. Now. that - between the deed and between what we were 
establishing, it actually gave Mr. Carswell a little more distance along the front line, rather than using the actual 
intersection of the two lines. (Tr. V. 2, p. 261 ) 

38. Although not incorporated by reference in the deed descriptions shown in the exhibits, many of the Petitioner's calls 
and distances are identical to the Wilkie Plat (Exhibits #14 and #I4A). The 162' distance contained in the second tract of the deed 
description in Exhibit #5 is shown on a later acquired Wilkie Map (Exhibit #14A) which is the northem line of the triangular tract 
(Deed Book 347, page 358). It is this northerly line shown on the Wilkie Map and the deed call of 162' which is the Complainant's 
chief complaint against the Petitioner. Petitioner's Map (Exhibit #3) shows the northerly line at a distance of 148.05' and not 162'. 

39. By reference to Exhibit #14A, the later acquired Wilkie Plat (acquired after the preparation of Exhibit #3), the 
northeast comer of the triangular tract closes beneath the point in the middle of the access road. A further reference to the Wilkie 
Plat (Exhibit #14A), indicates that the triangular tract will not close by measurement to the point in the center of the access road. 
There appears to be an ambiguity between the deed reference in Exhibit #5 and the Wilkie Plat (Exhibit #14A) as to this 162' distance. 

40. Petitioner asserts that the lesser distance of 148.05' shown on his survey (Exhibit #3) is more nearly the correct 
measurement of the northem line of the triangular tract (Deed Book 347, page 358) instead of the 162'. By first determining the 
location of this point in the access road immediately north of the northeast comer of the triangular tract by reference to the Wilkie 
Plat (Exhibit #14A) and then subtracting the 134' distance shown as a call on a portion of the eastem common boundary line of the 
2 6/10 Acre Tract fi-om the 154' distance shown as a call on a portion of the common western boundary line of the 7 8/10 acre tract, 
leaves a difference of 20'. This 20' is the distance from the southeast comer of the 2 6/10 acre tract and the middle of the 33' right-of- 
way. Subtracting 20' from the 33' right-of-way leaves a difference of 13', as the measurement between the pin shown in the middle 
of the 33' right-of-way of the Wilkie Plat (Exhibit #14A) and the northeastem point of closure of the triangular tract. Subtracting 13' 
from the 162' leaves a difference of 149'. Petitioner's line shows 148.05' which is less than a foofs difference from the 149' computed 
based upon measurements contained in the Wilkie Plat (Exhibit #14A). (Tr. V. 2, pp. 318-319) 

41 . Some of the differences between the distances found in the Wilkie Plat (Exhibit #14) and the Petitioner's survey 
(Exhibit #3) is attributable to the manner of measurement; the former based upon surface measured distances and the later on 
horizontally measured distances. (Tr V. 2, p. 301 ) 

42. The error ofclosure on the triangular tract (Deed Book 347, page 358). is Tin 24', meaning there is one foot of error 
for every measured 24'. The deed description for the triangular tract when plotted do not mathematically close but overlap. 

43. Petitioner's expert. Carl Bunton. RLS. performed a test ofclosure using the two longer distances over the triangular 
tract (Deed 347, page 358) of 363' and 351' which are also the identical distances found on the Wilkie Map, Exhibit #14A and also 



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CONTESTED CASE DECISIONS 



using the bearings on this deed. The closing distance on the northerly line of the triangular tract computes to 142.83', or, just under 
143'. (Tr. V. 2. p. 376) 

44. The distance found by Petitioner is longer by slightly over 5' from the Bunton computation for the northern line of 
the friangular tract (Deed Book 347, page 358). 

45. According to the testimony of George Paris, RLS, the deed descriptions were inaccurate. He testified as follows: 

[Q] Now, did you look at the deed descriptions to Mr. Carswell's property? 

[A] Yes, 1 did. 

[Q] Did you try to plot out any of these deed descriptions? 

[A] Yes.' 

[Q] And what results did you have when you plotted out and tried to plot out these deed descriptions? 

[A] A ver\' poor description — obviously, a ver>' poor description. It would not close, neither his nor Elsie 

Mull's would close. 1 think they were both out. They got to closure of something like 1 in 38 feet, which 

is not even acceptable for any kind of closure. (Tr. V. 1, p. 140) 

46. Petitioner placed a note in the triangular tract (Deed Book 347, page 358), regarding the mathematical closure and 
also as to the southwest comer and the northern line of the triangular tract as follows: "This tract would not close mathematically. 
The Southwest comer was established and the Deed angle was used to establish the North line of this tract." 

47. The deed distance along the southern line of the triangular tract (Deed Book 347, page 358), is 35 1 ' and is in accord 
with the distance shown on the Wilkie Map, Exhibit # 14A. George Paris. RLS. testified that this measurement on the Wilkie Map 
does not coincide with Petitioner's survey. Exhibit #3; however, no distance is measured along the southern line on Exhibit #3 from 
the western comer of the triangular tract to the southeastem comer of the triangular fract. This line is apparently a shared former 
boundary between the triangular tract (Deed Book 347, page 358). and the home place tract of 3.25 acres (Deed Book 1 11, page 377). 
The testimonial evidence agrees that "LI " on Petitioner's survey. Exhibit #3, is the beginning point in the deed descriptions. Deed 
Book 1 1 1, page 377 makes the following reference to this line: "Beginning on an iron pipe on the West bank of the Burkemont Road 
and runs West with a new marked line 3 1 9 Vi feet to an iron stake;" The reference to the 3 1 9 1 12'. the reference to the Wilkie Plat 
of 351'; and the description in Deed Book 347, page 358, are inconsistent. Notwithstanding this apparent inconsistency. Petitioner 
did not attempt to show a distance for the common southem line of the triangular tract ( Deed Book 347, page 358), and the home place 
fract (Deed Book 111, page 377). This line is shown as a broken line on Exhibit #3. 

48. After completing his survey (Exhibit #3), Petitioner and the Complainant, examined the survey on the ground. 
Complainant disagreed with the northem line of the triangular tract (Deed Book 347, page 358), because it shortened what was called 
for in the deed from 162' to 148.05' found on Petitioner's survey. Petitioner asserted that the deed distance was not correct and that 
his surveyed distance of 148.05' was correct. 

(I) [t]ook Mr. Carswell out on the ground and I showed him where we had put the stakes. And 1 took him to the 
northeast comer. And he said that's not correct. He said 1 am supposed to have a 162 feet along that line. 1 said, 
Mr. Carswell, 1 said, the deed that you've got, that you came in possession of. has a very poor closure in it. And 
if you try to compute what your closure is, you cannot come up with your 162 feet. And he said. 1 don't care. 1 
want my 162 feet on the front. And 1 said, Mr. Carswell, 1 cannot give that to you based upon all the available 
evidence that 1 find upon the ground. I said, there's nothing in that deed that ever tells me that it went to a road. 
There's nothing in that deed that ever tells me that there was a call for an adjoiner (sic). There's nothing in that deed 
that says it was an iron stake. The only thing that that deed called for was beginning on a stake, running to a stake, 
and then to the stake as to the beginning. 

And I said, Mr. Carswell, that deed has a tremendous amount of error in it, and the only person that knows where 
that error is is the good Lord, because 1 don't know where it's at. But I know, based upon surveying practices, that 
I've established that comer based on all the available evidence and trying to retrace the original surveyors foot steps 
as to where that comer should be. (Tr. V. 2, pp. 263-264) 

49. Once the disagreement arose between Complainant and Petitioner regarding the northem line of the triangular tract 
(Deed Book 347, page 358), communications became strained between the two. Mr. Harvey Barron, a retired forester who had 
surveyor experience with the North Carolina Forest Service and confidante of the Complainant, tried to represent Complainant in his 
communicating with Petitioner. The Barron fract (Deed 

1586 NORTH CAROLINA REGISTER March 15, 1999 13:18 



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CONTESTED CASE DECISIONS 



Book 369, page 671), is shown on Petitioner's survey. Exhibit #3, just south of the home place tract, (Deed Book 111, page 377). (Tr. 
V. 2, page 265) 

50. Petitioner went over the details of his survey with Mr. Barron. 

51. At Mr. Barron's suggestion, a sliver of land between Mr. Peeler and Mr. Carswell's southeastern boundary line could 
provide potential for an agreed boundary line agreement. Petitioner volunteered to talk to Mr. Peeler, the adjacent property owner 
to the northwest of the Carsweli home tract, about a boundary line agreement. This boundary line agreement negotiation ultimately 
failed because of the need of so many signatures from individuals having an interest in this tract or sliver. (Tr. V. 2. p. 268) 

52. Mr. Barron was a disinterested witness with some knowledge and experience in mountain surveying who attempted 
to reconcile the deed descriptions with the Wilkie survey and the Complainant's position. His testimony is not only credible but 
insightful and his conclusions are quoted in part as follows: 

Well, I realized there was somethin' wrong, because it didn't — as 1 just looked at what was there, it didn't jibe with 
what 1 thought it should be. So 1 told Oliver that 1 would do all 1 could to help him to solve it. 

So 1 went in the next day to get a copy of the deed to Elsie's property directly due north and Mr. Peeler's property 
south on down to the west. And I plotted those and scaled them off there on my kitchen table — not real 
professional. But, anyway. 1 plotted them off and discovered the closure error was really astronomical. Realizing 
then, of course, that, 1 looked and asked some questions about who did the survey. And he told me there was 
someone out of Rutherford County, and 1 didn't know his name then, and 1 don't think he remembered his name. 
But anyway, I said, well, this is the worst I've seen, and I've been in some pretty mountainous country where a lot 
of surveys have been made with an old staff compass... 

Well, some of the calls he made overlapped the neighbors in one place 25 feet, as 1 remember. And the closure 
error on his was close to 100 feet (reference to deed descriptions) (Tr. V. 2, pp. 356-357) 

Well, 1 realized after seeing this awful surveying job that this man out of Rutherford did that that may be the 
problem. And so - well, when Mr. Suttles put the stake down in a ditch, as I remember, there was about 1 7 feet, 
but 1 could be wrong there because it's two years ago and 1 forget a little bit. 

But if- 1 got to thinking, I said, okay, we'll move it wherever Oliver says that stake's supposed to go, and then we'll 
backside the same reading and distance which would be parallel with what is known as the north line of that tract 
of pie-shaped land. We would then end up. probably, say, 16, 17, 18 feet north of where the present stake is now, 
down on the northwest comer. 1 guess you'd call it. So that would then, in my mind, run (sic) (ruin) the integrity 
of the solid piece of home land he had over here because it would be 1 7 feet on beyond and over the road and down 
in the bank, north of the road. 

And so I got to thinking, well — and I sat down and told Oliver this and I also told Mr. Ritter and told Mr. Suttles. 
1 told all three because I wanted everything to be up and open, that 1 thought that since that was the case that ~ and 
so many bad calls by the previous surveyor, that 1 felt and believed that Mr. Suttles did the best he could with what 
he had to do with it. That's the very words I said. And 1 still believe that. 

Now I'm a fi^iend with Oliver He's a very close friend of mine, a very dear neighbor. But 1 feel that the problem ~ 
to me now ~ the problem is the bad surveys that had been done with these additional little pieces of land that went 
to the heirs caused the problem, although, 1 still believe that at one time the state was there. But how can you 
resolve it? 1 don't know. But that's how 1 feel. (Tr. V. 2, pp. 358-360) 

53 . Petitioner's survey did not reflect the disagreement between Petitioner and Complainant as to the deed distance along 
the northern line of the triangular tract (Deed Book 347, page 358). The land in dispute between Complainant and his neighbors to 
the north had been in dispute for well over 20 years. (Tr. V. 1, p. 110) 

54. According to the opinion of George Paris, RLS, if a surveyor does not show a deed distance, some statement as to 
that reason should appear on the survey. Mr. Paris' practice is to show two bearings and two distances shown on the Map. one being 
the record bearing distance, the other the survey bearing distance. In Mr. Paris' testimony he does not indicate that this omission 



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CONTESTED CASE DECISIONS 



violated a standard of care or that this omission specifically renders Petitioner's Plat as not clear and factual. 

55. According to the testimony of Bobby Long, RLS, he, too, believes that some mention of the conflict between the ' 
deeds and the surveys as to the disputed lines should have been placed on the Plat. He testifies as follows: 

And after talking with Mr. Carswell about the errors in the deed and the amount of errors in the deed. 1 would have 
set out the context (sic) of both of the parties or 1 would at least recognize that the Mull property to the north and 
also Mr. Carswell's property to the south, that they didn't agree on the line, that it, maybe, should be, in fact ~ I 
would have probably put on it that I would have recommended the boundary line go between owners. (Tr. V. 1 , pp. 
198-199) 

56. The survey further has the standard certification as follows: "THAT THE BOUNDARIES NOT SURVEYED ARE 
SHOWN AS BROKEN LINES PLOTTED FROM INFORMATION FOUND IN SEE PLAT JO LEFT ." The undersigned cannot 
find any dotted lines appearing on the Petitioner's Plat, Exhibit #3, as lacking clarity and being factual if the legend and certification 
indicate that these dotted lines have not been surveyed. 

57. Ordinarily, a surveyor surveys boundaries and all who refer to the surveyor's plat should be able to rely on the 
boundaries. However, due to the nature of the error of closure in the deeds and in the previous surveys, coupled with the lack of 
existing iron stakes or monuments on the ground, the Petitioner's disclaimer that: "THIS SURVEY DOES NOT CERTIFY LEGAL 
TITLE TO THE LAND ITSELF NOR THE BOUNDARIES SHOWN HEREIN." and "USERS OF THIS PLAT SHOULD OBTAIN 
A CURRENT LEGAL TITLE OPINION OF OWNERSHIP OF THE BOUNDARIES." would not make his survey (Exhibit #3) 
unclear or factually incorrect. 

58. Mr. Bunton's testimony as to whether or not he would include the 1 62 foot line 
claimed by Mr. Carswell is as follows: 

[Q] And you say that you, too, would refijse to put out the 1 62-foot line that Mr. Carswell maintained was his 

eastern triangular line? 
[A] The question I was asked was if I would set out a point and 162, and my answer was "no, I would not." 
[Q] Would you put it on your Map that that's what he claimed? 

[A] If he requested it, 1 would put it on the Map that that was his contention. I would put it on there that that 

was his contention, but it was not based on my survey. 
[Q] But it would at least appear on your Map that that's what his claim was? 

[A] If he had asked me personally to put that on there, yes. 

(Tr. V. 2,p. 393) 

59. Complainant never asked the Petitioner to specifically place his contention of 1 62' 
along the northern line of the triangular tract (Deed Book 347, page 358), on the Petitioner's 
survey (E.xhibit #3). 

60. There was no lappage or encroachment on Petitioner's survey. (Exhibit #3) 

61 . Complainant objected to the survey but paid the Petitioner's invoice for survey services in full. (Exhibits #30 and 

#31) 

62. Although the Respondent's experts testified that they would have surveyed the property differently, neither testified 
that Petitioner's survey was not clear and factual regarding the length of the eastern line of the triangular tract except that it was 
inconsistent with Complainant's contentions. 

63. Under the revision notes found in the bottom left comer of Exhibit #3, Petitioner deleted the proposed 45' right-of- 
way: "REVISED JUNE 27. 1996 TO DELETE PROPOSED 45' RIGHT-OF-WAY." 

64. Petitioner's survey. Exhibit #3. is clear and factual. 
Based upon the foregoing Stipulations and Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

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CONTESTED CASE DECISIONS 



1. Pursuant to Chapters 89C and 150B of the North Carolina General Statutes, the Office of Administrative Hearings 

has personal and subject matter jurisdiction of this contested case. 



2. 
of its licensees. 



Pursuant to 89C- 1 0(a), the Respondent is granted the authority to adopt rules governing the professional conduct 

3. Pursuant to this statutory authority, the Respondent promulgated 21 NCAC 56.1602. 

4. 21 NCAC 56 .1602(e) is quoted, in part, below: 

The results of a survey when reported to the user of that survey, whether in written or graphic form, shall 
be prepared in a clear and factual manner. All reference sources shall be identified. Artificial monuments called 
for in such reports shall be described as found or set. When no monument is found or set for points shown in such 
reports, that fact shall be noted. 

5. The phrase "in a clear and factual manner" is not defined in 21 NCAC 56 .1602(e) and therefore must be construed 
based upon the evidence. 

6. Pursuant to the standards found in 2 1 NCAC 56 .1602(a) pertaining to adequate investigation for the determination 
of encroachments, gaps, lappages. or other irregularities along each line surveyed. Petitioner, under the facts found, conducted 
adequate investigations to make these determinations. 

7. Under the provisions of 2 1 NCAC 56 .1602(b) Petitioner determined encroachments or easements on the subject 
property being surveyed and to the best of his knowledge and ability accurately located and clearly indicated these encroachments 
or easements. Further. Petitioner adequately researched the existing deeds and the deeds and plats of the surrounding tracts. 

8. Because of the errors of closure contained in the deed description to the triangular tract and the grantor's apparent 
reliance upon the Wilkie Plats in the deed calls and. further, due to the Petitioner's inability to locate existing iron stakes or 
monuments, it became necessary for the Petitioner to reconcile the Wilkie Plats with the deed description. Further, the deed 
description had very few references to existing monuments, the 30' strip adjoining the property, or other references to even determine 
the beginning point of the deed description. 

9. Respondent did not establish by the greater weight of the evidence that Petitioner violated Board Rule 21 NCAC 
56.1602(e) or that Petitioner otherwise failed to prepare his survev in a clear and factual manner by ignoring the deed descriptions 
and the intent of the grantor when placing the following note on his survey: "This tract would not close mathematically. The 
Southwest comer was established and the deed angle was used to establish the North line of this tract." 

10. Respondent did not establish by the greater weight of the evidence that Petitioner violated Board Rule 21 NCAC 
56.1602(e) or that Petitioner otherwise failed to prepare his survey (Exhibit #3) in a clear and factual manner by failing to show 
disputed property lines and Complainant's claim of occupation on his survey (Exhibit #3). 

11. Respondent did not establish by the greater weight of the evidence that Petitioner violated Board Rule 21 NCAC 
56. 1 602(e) or that Petitioner otherwise failed to prepare his survey (Exhibit #3 ) in a clear and factual manner by reporting a general 
easement as an enlarged right-of-way without supporting documentation by: (a) expanding a northern easement into Complainant's 
property; (b) presuming a public dedication of land that did not exist; (c) relying on an unpublished and unregistered survey; (d) 
ignoring or denying Complainant's possession of land. 

12. Respondent did not establish by the greater weight of the evidence that Petitioner violated Board rule 21 NCAC 
56.1602(e) or that Petitioner otherwise failed to prepare his survey in a clear and factual manner by reporting a boundary-line 
agreement without the consent of parties by: (a) completing a "final survey" and then telling his client he needed an attorney (to solve 
the "problem that doesn't appear on the survey"; (b) based on his own action of moving Complainant's eastern (triangular) line, south 
maintaining that "no one owned the tract" shown as right-of-way; (c) removing landmarks, which, in themselves, den\ a boundar) -line 
agreement; (d) being aware of problems with the boundaries but not reporting it: his survey reflecting: "no problem here." 

1 3 . Respondent did not establish by the greater weight of the evidence that the Petitioner violated Board rule 2 1 NCAC 
56.1602(e) or otherwise failed to prepare his survey (Exhibit #3) in a clear and factual manner by attempting to absolve himself by 



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improperly reporting the following disclaimers when his seal and signature afFirm that the map is a correct delineation of the property 
set forth thereon: (a) "No title search conducted at time of survey"; (b) "property is subject to any rights of way easements of record, 
or retroactive covenants"; (c) "this survey does not certify legal title to the land itself nor the boundaries shown thereon"; (d) "users 
of this plat should obtain a current legal title opinion of ownership of the boundaries." 

14. As to Respondent's charge that Petitioner failed to show disputed property lines and Complainant's claim of 
occupation on his survey map (Exhibit #3) was a more factually contested issue and the chief complaint of the Complainant. The 
expert testimony and opinions on this issue conflicted and, although elucidating, were not controlling. The pivotal question as to 
whether or not Petitioner should have disclosed the Complainant's contention as to the northern line of the triangular tract. Deed Book 
347, page 358, is a close question. The Complainant, as a member of the public whose protection is the subject of the public policy 
behind the regulatory scheme of licensing land surveyors (see G.S. 89C-2), is entitled to know why his deed call along this line did 
not measure up to the length of his deed distance of "162' to a stake." The survey reported this distance of 148.05'. The testimonial 
evidence agrees that no stake was found to locate and identify Complainant's northeastern comer of the triangular tract (Deed Book 
347, page 358). The dilemma for both the Petitioner and the Complainant, by reference to the deed as well as to the Wilkie Plat, is 
that this northern line will not produce closure of the triangular tract at the deed distance. By reference to the Wilkie Plat (Exhibit 
#14A), this point is above the closure of the triangular tract and by reference to the deed, testimonial evidence agrees that no closure 
will occur under the description. The failure to find evidence on the ground to support the deed description coupled with the evidence 
found in reproducing these points from the Wilkie Plats, demonstrates that Petitioner's survey (Exhibit #3) was technically correct 
within the standards of practice and neither was a violation of Board Rule 2 1 NCAC 56. 1602(e) nor was it a failure by Petitioner to 
prepare his survey in a clear and factual manner. However, Complainant was entitled to a clear explanation as to why this line in 
Petitioner's survey determination was not in conformity with the deed description. 

15. Petitioner's conversations with the Complainant after the survey (as found in the Findings of Fact) as well as Mr. 
Barron's attempt at explaining this discrepancy to the Complainant (as found in the Findings of Fact) was a good faith attempt on the 
part of the Petitioner to explain the discrepancy. 

16. The uncertainties found in the Petitioner's survey (Exhibit #3) is, in large measure, attributable to the uncertainties 
of the existing deed descriptions and the Wilkie Plats. 

17. The undersigned can find no grounds by which the Respondent can or should make a finding of misconduct on the 
part of the Petitioner for gross negligence or misconduct in the practice of his profession as required by G.S. 89C-2 1(a)(2)." 

Based upon the Stipulations, Findings of Fact and Conclusions of Law, the undersigned makes the following: 

PROPOSAL FOR DECISION 

That the Notice of Hearing and charges contained therein against the Petitioner be dismissed and that the Petitioner, and with 
his consent, accept a letter of warning and admonishment that will remain in his record for a period of three (3) years for his failure 
to note on his survey the inconsistency between his surveyed distance and the deed distance along the northern line of the triangular 
tract for the edification and understanding of both his client and other members of the public, but that this warning or admonishment 
not constitute a formal adjudication of misconduct or gross negligence which would support a reprimand. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, P. O. Drawer 27447, 
Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions 



Many Chapters in Title 21 (21, 22, 26, 40, 42, 48G, 63. 66 and 69) as well as Title 27 (IB) provide for the issuance of a lesser 
finding of culpability than a reprimand. If this disciplinary provision was available to the Respondent under Title 21. Chapter 56, 
it would be appropriate to admonish or warn the Petitioner that he could be subject to disciplinary action in the future if he failed to 
note or reconcile a deed distance of a boundary-line with his surveyed distance. 

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and proposed findings of fact and to present oral and written arguments to the agency. G.S.I 50B-40{e) 

A copy of the final agency decision or order shall be served upon each party personally or by certified mail addressed to the 
party at the latest address given by the party to the agency and a copy shall be furnished to his attorney of record. G.S. 150B-42(a). 
It is requested that the agency furnish a copy to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the North Carolina State Board of Registration for 
Professional Engineers and Land Surveyors. 

This the 9th day of February, 1 999. 



Julian Mann, III 

Chief Administrative Law Judge 



13:18 NORTH CAROLINA REGISTER March 15, 1999 1591 

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CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF RANDOLPH 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

98OSP0170 



CHARLES A. LINDQUIST 
Petitioner, 



STATE OF NORTH CAROLINA; DEPT. OF CRIME 
CONTROL AND PUBLIC SAFETY; N.C. HIGHWAY 
PATROL 

Respondent. 



RECOMMENDED DECISION 



J. 



The above entitled matter was heard before North Carolina Administrative Law Judge Beecher R. Gray on September 24, 
1998 in Raleigh. North Carolina. Respondent had previously filed a motion to dismiss under Rule 12(b)(6), which was denied by 
the Honorable Brenda Becton, Administrative Law Judge. Respondent had also previously filed a motion for summary judgment, 
which was also denied. 

APPEARANCES 

Petitioner: J. Michael McGuinness, Esquire 

Respondent: Jonathan P. Babb, Assistant Attorney General 

ISSUES 

L Whether Petitioner Lindquist is entitled to relief under N.C.G.S. 126-25 by having Respondent retract misleading 

and inaccurate information fi-om Petitioner's personnel file? 

2. Whether the information objected to by Petitioner was inaccurate or misleading? 

FINDINGS OF FACT 

\. The parties received notice of hearing more than fifteen (15) days prior to the hearing and each party stipulated on 

the record that notice was proper. 

2. Petitioner Lindquist initiated a grievance seeking removal of information from his personnel file that he deemed 
inaccurate and misleading. The information that Petitioner Lindquist objected to was the inclusion of documents 
in his personnel file that accused Petitioner of a "Personal Conduct" violation imposing a written warning, and by 
allegedly demonstrating a "disrespectfiil and insolent attitude toward Colonel E.W. Horton." See Personnel Charge 
Sheet, exhibit F. There was no evidence that Petitioner was insubordinate, or that Petitioner exhibited any 
disrespectful or insolent attitude toward Colonel Horton. 

3. The trial began with stipulations as to the admissibility of a number of exhibits. T4.' The parties stipulated 
that Petitioner Lindquist authored the subject article which appeared in the Black and Silver 
News , which is a newsletter publication of the North Carolina Troopers Association. Trooper 
Lindquist did not publish the article, but the Troopers Association did publish the article. 

4. Trooper Lindquist is a master trooper stationed in Asheboro and has served the patrol continuously since 1 979. T2- 
2. Trooper Lindquist holds the advanced law enforcement certification from the Training and Standards 
Commission and graduated first in his highway patrol school class. T2-3. Several wimesses testified that Petitioner 
Lindquist was a dedicated trooper, was a person of integrity and honesty, effective in his job and respected by his 



The hearing transcript is denoted herein as T, followed by the pertinent page numbers. 



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peers. T144 (testimony of Sgt. Wadell); T164 (testimony of First Sgt. J.R. Williams). 

5. Trooper Lindquist has served as President of the North CaroHna Troopers" Association since ]996 and he was 
previously associated with the Troopers" Association since 1987. T2-4. Trooper Lindquist e.xplained the essential 
purposes of the North Carolina Troopers" Association. T2-5-6. Trooper Lindquist started publishing articles in the 
association"s publications in 1993. T2-8. 

6. The North Carolina Troopers Association (NCTA) is a voluntary association of state troopers that engages in 
advocacy on behalf of North Carolina troopers. NCTA engages in various community service activities, legislative 
advocacv, litigation, and publishes the Black and Silver News. Petitioner Lindquist is the president of the NCTA. 

7. Exhibit 1 is the copy of the relevant article from the Black and Silver News . The subject article appeared in the 
August 1997 edition of Black and Silver News, which contained a column authored by Petitioner Lindquist that 
addressed the use of "stop sticks" by the North Carolina Highway Patrol. There was no evidence offered that the 
subject article was written while on duty or in connection with governmental resources. 

8. A "stop stick" is a tire deflation device used by the N.C. Highway Patrol to safely and effectively deflate the tire 
of a pursued vehicle thereby resulting in the termination of a high speed chase. High speed pursuits by law 
enforcement officers are controversial topics of public interest and opinion. Therefore, communications by state 
troopers about stop sticks and related matters is a proper subject of commentarv by Petitioner and others. 

9. The NCTA purchased stop sticks for the N.C. Highway Patrol. NCTA"s labels on the stop sticks were subsequently 
covered up by another label. The gist of Petitioner Lindquist's expression in his column was that the NCTA had 
been unfairly treated by the Patrol in connection with the stop sticks. The subject article contained expression and 
opinions about the N.C. Highway Patrol and Colonel E.W. Horton. 

10. There was no evidence offered b\ Respondent that denied the truth of what Petitioner Lindquist stated in his 
column. Without a denial of the truth of the matter asserted, there is no basis to scrutinize Petitioner Lindquist for 
what he wrote in his column. Petitioner, like all other citizens, is free to speak, write and otherwise communicate 
any and all truthful matters. 

1 1 . Petitioner's Exhibit 2 is the January 16, 1998 memo from Captain Compton to Major Cain (King), which is one of 
the two documents offered to show what the inaccurate and misleading personnel information was. T16-17. 
Respondent's Exhibit F, the personnel charge sheet disposition, is also a document contended by Petitioner to be 
inaccurate and misleading. The alleged misleading and inaccurate persormel information is set forth in Exhibits 
2 and F. T20. 

12. Upon consideration of the evidence, the undersigned issued a determination at the hearing that the documents 
comprising the written warning imposed on Petitioner Lindquist are "inaccurate and misleading." T28. The 
undersigned reasoned that Petitioner Lindquist's article was protected by the constitution because it was "protected 
speech." T28. Consequently, Petitioner Lindquist's speech cannot constitute insubordination in this case. T28-29. 

13. Petitioner Lindquist offered proof demonstrating that there was a prior incident of attempted retaliation against him 
for writing articles in publications of the NCTA. See testimony of Retired Colonel Robert Barefoot. T45-47. 

14. Petitioner's first witness was Robert A. Barefoot, a retired Colonel of the North Carolina Highway Patrol who 
served from 1959 up until his retirement in approximately 1996. T40. Retired Colonel Barefoot knew Petitioner 
Lindquist from the time when Lindquist wrote an article critical of some of the policies of the North Carolina 
Highway Patrol. T41. 

15. Retired Colonel Barefoot explained that he was very close to Colonel E. W. Horton and had worked ver\ closely 
with him. T43. Retired Colonel Barefoot enjoyed a good working relationship with Colonel Horton. T43. Retired 
Colonel Barefoot had recommended E. W. Horton to the North Carolina Governor to replace Colonel Barefoot 
when he retired. T42. 



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CONTESTED CASE DECISIONS 



16. Retired Colonel Barefoot was aware that Petitioner Lindquist had been writing articles for publication that appeared 
in the publications of the North Carolina Troopers Association. T44. Colonel Barefoot called a staff meeting to 
discuss the articles being written by Petitioner Lindquist about the Patrol. T45. In the staff meeting. E. W. Horton 
"was very rigid about it and wanted to treat it as a serious type thing..." T45. Mr. Horton told Colonel Barefoot 
at the time that he should consider disciplinary action against Petitioner Lindquist. T45. The disciplinary action 
that Mr. Horton suggested to Colonel Barefoot was "rather severe, firing, dismissal, or move him from his 
location." T46. Mr. Horton's statements in that regard were based upon what Petitioner Lindquist had written in 
the article. T46. Mr. Morton's recommendation to Colonel Barefoot was that Petitioner Lindquist be fired or moved. 
T46-47. 

17. After conferring with counsel and obtaining legal advice. Colonel Barefoot decided to not take any adverse or 
disciplinary action against Trooper Lindquist because of his speech contained in the articles. T47. Colonel Barefoot 
also asked the staff not to take any action against Trooper Lindquist because of his speech. T47. Despite Colonel 
Barefoot's decision. Mr Horton's reaction to Colonel Barefoot's decision was that Mr. Horton "still wanted to carry 
forward with his idea on it..." T48. 

18. Colonel E. W. Horton was called to testify. T195. Colonel Horton was familiar with the magazine published by 
the North Carolina Troopers" Association. T200. Colonel Horton had occasion to observe what the Troopers' 
Association was publishing. T201. Colonel Horton previously read an article published in the Troopers' 
Association's newsletter, the Black and Silver News whereby Trooper Lindquist referenced Colonel Horton. 

19. Colonel Horton indicated that the article that Trooper Lindquist wrote about him "gave him heartburn." T201 . 
Colonel Horton became a complainant and issued a charge of misconduct against Trooper Lindquist for writing the 
article. T202. Colonel Horton was then interviewed by Internal Affairs in a capacity as a witness in that matter. 
T202. After the Internal Affairs inquiry was concluded. Colonel Horton also acted as the decision maker in that 
same case. 7^02. Colonel Horton conceded that there "could be an issue" of a conflict of interest because of his 
dual roles as witness and decision maker. T202. 

20. The disciplinary action in the form of a written warning against Trooper Lindquist was based solely upon what 
Trooper Lindquist said in the article that was written. T203. Colonel Horton acknowledged reading a previous 
article in the Black and Silver News which was complimentary of him; Colonel Horton did not have any objection 
to that article. T204, 

21. Consequently, Colonel Horton did not object to what he deemed to be favorable speech about him but when the 
speech became critical, he got "heartburn" and imposed disciplinary action in the form of a written warning. T204. 
The purpose and effect of such a written warning was to chill speech that Colonel Horton objected to. 

22. The prior incident explained by Retired Colonel Barefoot sheds light on the motivation of the adverse action in this 
case. 

23. Trooper Timothy Ambum was called to testify. T235. Trooper Ambum has served for over 12 years with the patrol 
and is currently stationed in Guilford County. T235. Trooper Ambum served as the Vice President of the North 
Carolina Troopers" Association. T235. Trooper Ambum testified that the Troopers' Association held a board 
meeting which Colonel Horton attended. One of the topics that Colonel Horton discussed was the fact that he 
wanted the Troopers' Association to present a more positive image from some of the articles that had been 
previously written, specifically making reference to Charles Lindquist in referring to the previous articles. T236. 

24. Offers of proof were submitted consisting of deposition testimony of Colonel Horton. T2-73. They involve Colonel 
Horton's deposition testimony in the Gamer case and in the Lindquist case; also the court order in the case of Allan 
Williams y, E.W. Horton and the State of North Carolina was submitted. T2-74. The Williams case was settled 
after entry of a temporary restraining order was entered finding retaliation against Plaintiff Williams because of free 
expression very similar to this case. 

25. N.C.G.S. 126-25 provides in pertinent part: 

"An employee, former employee or applicant for employment who objects to material 
in his file because he considers it inaccurate or misleading may seek the removal of 

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such material from his file in accordance with the grievance procedure of that 
department, including appeal to the state personnel commission." (emphasis added) 

Additional language in the statute also demonstrates that the General Assembly authorized a particular remedy 
including destruction of the original and copies of the material to be removed from the file. 

26. N.C.G.S. 1 26-34. 1 is entitled "Grounds For Contested Case Under The State Personnel Act Defined" and provides 

in pertinent part that: 

A state employee or former state employee may file in the Office of Administrative Hearings a contested 
case under Article 3 of Chapter 150B of the General Statutes...(6) denial of an employee's request for 
removal of allegedly inaccurate or misleading information from the employee's personnel file as provided 
by G.S. 126-25. 

CONCLUSIONS OF LAW 

Based upon the forgoing findings of fact. I make the following conclusions of law. 

1 . The Parties properly are before the Office of Administrative Hearings. 

2. Inaccurate or misleading information in a personnel file results in definitive harm to and adversely affects the 
aggrieved employee, the agency and the public: 

a) It can be used by the employer to justify more severe adverse action in future incidents of discipline; 

b) It can be accessed by future prospective employers when the individual might be changing jobs: this may cause 
an individual to lose a future job based upon the misleading information; 

c) The employing agency files will not be accurate therefore personnel decisions may be erroneous or even unlawful 
if premised upon misleading information; 

d) Misleading or adverse inaccurate references therein can cause permanent injury to public employees as they seek 
promotions, other employee related advancement, and other career efforts in the future. 

e) Consistent with traditional principles of substantive due process and equal protection, governmental employers 
are required to act in good faith and not arbitrarily. See, e.g.. Wall y, Stanly Ctv. Bd. of Educ . 259 F. Supp. 238, 
249 (M.D.N.C. 1966)(citizens "are not at the mercy of any whimsical or arbitrary decision" b\ government; the 
government must act "in good faith and not arbitrarily, capriciously . . . ."). rev'd on other grounds. 378 F.2d 275 
(4th Cir. 1967). Consequently, in order to comply with their good faith obligations, governmental employers should 
strive to maintain accurate personnel information for the benefit of government and employees. 

3. In this case, the misleading and inaccurate information in Petitioner Lindquist's personnel file has adversely affected 
Petitioner because his permanent personnel record and history' as a state employee would be adversely affected if 
the information remains permanently in Petitioner's file. There is no legitimate basis for the inaccurate and 
misleading information to remain in Petitioner's file; this court finds that the information should be removed in 
order to promote integrity of the State's personnel system and Petitioner's personnel files. 

4. Respondent's personnel charge sheet/disposition makes specific allegations against Petitioner Lindquist. Petitioner's 
contested case petition alleged under N.C.G.S. 126-25 that the information contained in his personnel file is both 
"misleading" and "inaccurate" as provided for in the statute. 

5. Because the written warning contains misleading and inaccurate information in Petitioner Lindquist's personnel 
file, an express violation of N.C.G.S. 126-25 has been committed. Pursuant to N.C.G.S. 126-34. 1(a)(6). Petitioner 
sought removal of the inaccurate and misleading information from his file, which was denied up through the chain 
of command to and including Secretary Richard Moore. 



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6. The apparent legislative purpose in N.C.G.S. 1 26-25 is to afford a remedial mechanism authorizing state employees 
to protect the integrity of their personnel files. Information within governmental personnel files of state employees 
is vitally important because it becomes a permanent and official part of the employee's employment and 
occupational history. The North Carolina Constitution affords specific protection for occupational liberty in Article 
1. section I of the North Carolina Constitution. In Treants v. Onslow County . 83 N.C. App., 350 S.E.2d 365, 371 
(N.C. App, 1986), aff d as modified, 320 N.C. 776, 360 S.E.2d 783 (1987), the North Carolina appellate courts 
explained how the right to earn a livelihood is a "fundamental" constitutional right under the North Carolina 
Constitution. 

7. In order to make a proper determination of whether the objected to information is misleading or inaccurate, the 
undersigned has to consider and determine whether the speech in question was protected. The undersigned's 
speech analysis is employed only for purposes of analyzing the question under N.C.G.S. 1 25-25. The undersigned 
is not, however, attempting to decide a constitutional question in and of itself Rather, the analysis is being 
employed to assist in determining the statutory questions presented under the State Personnel Act. 

8. If the speech in question is protected. Petitioner cannot be subjected to any punishment for the speech. If the 
speech in issue was protected, it cannot constitute insubordination as Respondent submits. 

9. Respondent contends that Petitioner's speech was "insubordinate" because it criticized Colonel Horton and the 
Highway Patrol. Respondent's contention is awkward because there was no evidence that Petitioner had been 
ordered to not publish the subject article. There was no evidence that Petitioner was ordered to do anything. 
Without an order of some type, there is no basis for an insubordination charge in any event. 

10. Generally, insubordination involves "a willful or intentional disregard of the lawful and reasonable instructions of 
the employer." See Black's Law Dictionary , citing Porter y. Pepsi Cola Bottling Co. . 247 S.C. 370. 147 S.E. 2d 
620, 622 (1964). Insubordination has been defined by North Carolina courts to constitute "a willful disregard of 
express or implied directions of the employer and a refusal to obey reasonable orders." Thompson y. Wake County 
Board of Education , 31 N.C. App. 401, 424-25 (1976).' Professor Silver defines insubordination as "willful 
disobedience to a lawful and proper order of an agency superior..." Volume 1 , Silver, Public Employee Discharge 
and Discipline , Section 3.7 at 156 (2nd Ed. 1995). 

1 1 . Publications such as the Black and Silver News are proper forums for employee associations to express ideas about 
public service, issues affecting their employers and their work, and a host of other issues of public concern. The 
Black and Silver News is a publication which generally enjoys constitutional protection under the Freedom of the 
Press Clause and the Free Speech Clause of the First Amendment to the United States Constitution unless the 
government can prove some compelling interest to suppress the expression in issue. 

12. As a North Carolina State employee. Petitioner Lindquist enjoys protection afforded under the State Personnel Act, 
under the First Amendment to the United States Constitution and under Article 1 , section 1 4 of the North Carolina 
Constitution. Article 1, section 14 provides that freedom of speech is one "of the great bulwarks of liberty." 

13. In U.S. V. National Treasury Employees Union , 513 U.S. 454, 115S. Ct. 1003 (1995), the United States Supreme 
Court held that off-duty expressive activities of public employees cannot be restricted. The Court held 
unconstitutional a statutory provision prohibiting government employees from earning income through off-duty self 
employment involving writing. The Court held that a statute prohibiting receipt of honoraria by government 
employees was unconstitutional because it would burden expressive activities in violation of the First Amendment. 
The statute in question prohibited federal employees from accepting any compensation for making speeches or 
writing articles. The Supreme Court observed that public employees ""who write for publication in their spare time 
have made significant contributions to the marketplace of ideas." 1 1 5 S. Ct. at 1012. 

14. Petitioner Lindquist was punished in the form of a written warning because he engaged in constitutionally protected 
activities of free speech and freedom of the press. 



See Higgins v. City of St. Louis , 738 S.W. 2d 895 (Mo. Ct. Add. 1987); Fink v. Revco , 666 F. Supp. 1325(W.D. No. 1987). 
An alternative defmition of insubordination is a "constant or continuing intentional refiisal to obey a direct or implied order reasonable 
in nature and given by and with proper authority." Lockhart v. Arapahoe , 735 P. 2d 913, 915 (Col. 1986). 

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15. Generally, a public employee may not be adversely affected for exercising one's right to freedom of speech upon 
an issue of public concern. Numerous cases, infra. , have firmly established the fundamental constitutional right 
of all public employees to communicate with and even criticize their public agency employers and various public 
officials. 

1 6. The constitutional rights of law enforcement officers "must be afforded great weight." Konraith y. Williquette . 732 
F. Supp. 973. 978 (W.D. Wis. 1990). The United States Supreme Court has made clear that police officers are not 
relegated to a "watered down version of constitutional rights." Garrity v. New Jersey . 385 U.S. 493. 500 (1967). 
"There can be no doubt that a policeman has full First Amendment rights." Brukiewa y. Police Commissioner . 263 
A. 2d 210 (Md. 1970). "Freedom of speech is among the most precious of our constitutional rights." National v. 
Town of Dedham . 43 F.3d 731. 736 (1995).' Speech on public issues occupies the highest rung of the hierarch> 
of First Amendment values and is entitled to special protection. NAACP v. Claiborne . 458 U.S. 886. 913 (1982). 

1 7. Expressing "unpopular viewpoints'" has long been an essential constitutional right. E.g.. Tinker y. Pes Moines . 393 
U.S. 503. 508-09 (1968) where the Court held that wearing armband as svmbolic protest of Vietnam war was 
protected even though such expressive conduct may "cause a disturbance." In Berger y. Battaglia . 779 F.2d 992. 
1001 (4th Cir. 1985). the Fourth Circuit rejected the police department's efforts to restrict off-duty expression 
consisting of entertainment. 

1 8. The speech and expression of Petitioner Ltndquist in the subject Black and Silver News constituted expression on 
a matter of public concern and is protected speech. 

19. Communicating and reporting governmental inefficiency or misconduct constitutes classic protected speech.^ See 
Hall V Marion. 31 F.3d 183 (4th Cir. 1994)(affinning verdict for employee where communication involved 
allegations of waste of taxpaver's money): Marshall v. Porta County . 32 F.3d 1215. 1219 (7th Cir. 1994)(affirming 
verdict for employee where public employee commented about claims for excessive mileage, improper inspections 
and other agency misuse). 

20. Allegations of malfeasance or abuse of office have been among the areas of speech most vigilantly protected by 
the courts. E.g..Hall. 31 F3d 183: Davis . 40 F.2d 777: Czurlanis v. Albanese . 721 F.2d 98 (3rd Cir. 1983)." 

2 1 . Expression related to law enforcement issues is virtually always held to constitute matters of public concern. Such 



' See Churchill v. Waters . ll4S.Ct. 1878. 128 L.Ed 2d 686 (1994): Fikes v. City of Daphne . 79 F.3d 1079 (1 Ith Cir. 1996); 
Beckwith v. City of DaMona . 58 F. 3d 1554 (11th Cir. 1995): Dishow v. School Dist . 77 F. 3d 195 (7th Cir. 1996): Vezzetti v. 
Pelligrini . 22 F. 3d 483 (2nd Cir. 1994): Voj vodich v. Lopez . 48 F. 3d 879 (5th Cir. 1994): Pro v. Donatucci . 81 F. 3d 1283 (3rd Cir. 
1 996): Watters y, Cjty of Philadelphia : 55 F. 3d 886 (3rd Cir. 1995); Jao y, Freeh . 27 F.3d 639 (D.C. Cir. 1994); Schultea y. Wood . 
27F.3d 11 12 (5th Cir. 1994). 

^ See. e.g.. Vasbinder v. Ambach . 926 F.2d 1333 (2nd Cir. 1993)(communicating about suspicious activity in federally funded 
program of public concern): O'Connor v. Stevens . 994 F.2d 905. 912-16 (1st Cir. 1 993 )( communications about unauthorized use of 
public agency departmental accounts of public concern). 

' Scores of cases are in accord. Marohonic v. Walker . 800 F. 2d 613. 616 (6th Cir. 1986)(communication about fraudulent medical 
billing by public employer touched upon public concern: "public interest is near its zenith when ensuring that public organizations 
are operating in accordance with the law ... and seeing that public funds are not purloined."); OHFC v. Hughes . 816 F.2d 1 144 (7th 
Cir. 1987) (communication detailing abuses in public probation office was of public concern): McMurphy v. City of Flushing. 802 
F.2d 191 (6th Cir. 1986)( accusations of misconduct by municipal officials touched public concern); Rookard v. Health and Hosp. 
Corp .. 710 F.2d 41. 46 (2d Cir. 1 983 )( communications about corruption and waste in government "obviousl>" a matter of public 
concern); Benson v. Alphin . 786 F.2d 268 (7th Cir. 1986)(employee's communications about tax violations by government employees 
was of public concern.) 

' A plethora of courts have held that speech and conduct relating to virtually every facet of law enforcement agencies is of 
utmost public concern and is among the most protected forms of any kind of speech or conduct. E.g., Rankin y^ McPherson . 483 U.S. 
378 ( 1 987); Biggs y. Village of Dupo . 892 F.2d 1 298. 1 30 1 -02 (7th Cir. 1 990)(police officer's communications discussing lack of 
police funding protected); Manhatten Beach Police Ass'n y. City of Manhatten Beach. 881 F.2d 816 (9th Cir. 1989)(police officer's 
communications and conduct critical of manpower shortage held protected): Rode y. Dellarciprete . 845 F.2d 1195 (3rd Cir. 
1988)(police officer's communications about racial harassment of her held protected); Matulin y. Village of Lodi . 862 F.2d 609 (6th 



13:18 NORTH CAROLINA REGISTER March 15, 1999 1597 

BHaaMBaB^^BiBgiMMiaflBllflliifininnniinniii^M^MM 



CONTESTED CASE DECISIONS 



iaw enforcement related speech is of "utmost public concern." O'Donnel y, Yanchulis . 875 F.2d 1059, 1061 (3rd 
Cir. 1989). "The delivery of police services... is unavoidably of interest to its citizenrv." Broderick y, Roache . 767 
F. Supp. 20, 24 (D. Mass. 1991 ). Thus, commentary about police services and agencies is protected. Conditions 
within police departments are of such great public concern because those conditions affect the level of public safety 
See Watters y, Oty. 55 F.3d 886, 891 (3rd Cir. 1995). 

22. The undersigned has weighed the respective interests of the parties in arriving at the conclusion that Petitioner's 
expression is protected. The respondent has not shown any compelling governmental interest that would outweigh 
Petitioner's interests in free expression. Judge Sam Ervin 111 has explained how a public employer must prove a 
"compelling governmental justification" for limiting expression or protected activities. See Hickorv Firefighters 
y. City. 656 F.2d 917, 921 (4th Cir. 1981 ). The government's conduct must "survive exacting scrutiny" in order 
to justify suppression of expression or association. Elrod y. Bums , 427 U.S. 347. 362 (1976). "The interest 
advanced must be paramount, one of vital importance, and the burden is on the government to show the existence 
of such an interest." Id. 

23. In this case, the respondent has no compelling or other legitimate interest in imposing a written warning upon 
Petitioner Lindquist because of his article in the Black and Silver News. Free expression of ideas about stop sticks 
and the Patrol's position are matters of important public interest worthy of commentar> by Petitioner and others. 
A weighing of the respective interests compels the conclusion that Petitioner's interests in free expression (and that 
of the public) outweigh any interest that the government might have in suppressing the expression. 

24. The North Carolina Appellate courts have breathed new life into the North Carolina Constitution in a series of 
public employee free speech cases. See Corum v. LTNC , 330 N.C. 761,413 S.E.2d276 (1992): Lenzer v. Flahert\\ 
106 N.C. App. 496 (1992); Howell v. Town of Carolina Beach, 419 S.E.2d 277 (N.C. App. 1992); Warren v. New 
Hanover Bd. of Educ , 410 S.E.2d 232 (1991). Each of these cases reversed lower court dismissals and recognized 
developing or new applications of the state constitution for public employees. These cases generally follow the 
analytical framework enunciated in the federal cases construing the First Amendment. 

RECOIVIIVIENDED DECISION 

Based upon the foregoing findings of fact and conclusions of law, it is hereby recommended that the State Personnel 
Commission fmd that the information objected to in Petitioner Lindquist's personnel file is both inaccurate and misleading; that the 
inaccurate and misleading information be stricken from Petitioner's personnel file; and that counsel fees and costs be awarded to 
Petitioner. 

ORDER 

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative Hearings. P. O. 
Drawer 27447, Raleigh, NC 2761 1-7447, in accordance with North Carolina General Statutes Section 150B-36(b). 

NOTICE 

Before the agency makes the FfNAL DECISION, it is required by N.C.G.S. Section 150B-36(a) to give each party an 
opportunity to file exceptions to this RECOMMENDED DECISION, and to present written arguments to those in the agency who 
will make the final decision. 

The agency is required by N.C.G.S. Section 150B-36(b) to serve a copy of the Final Decision ton all parties and to furnish 
a copy to the Parties' attorney of record. 



Cir. 1988)(police officer's statements regarding employment discrimination held protected); O'Donnell y. Yanchulis . 875 F.2d 1 059 
(3rd Cir. 1989)( police chiefs statements held protected); Brawner v. Cit\- of Richardson . 855 F.2d 187 (5th Cir. 1 988 )( letter alleging 
police departmental improprieties held protected); Murphy v. City of Flushing . 802 F.2d 191, 196(6thCir. 1986)(public obviously 
concerned with how a police department if operated); Bricknell y. Norton. 732 F.2d 664 (8th Cir. 1984)( Public has a "vital interest" 
in police department); Soleman v. Royal Oak Township . 842 F.2d 862 (6th Cir. 1988)(police officer's statements alleging departmental 
improprieties held of public concern and protected); O'Brien v. Town of Caldonia . 748 F.2d 403. 407 (7th Cir. 1984)( police officer's 
communications alleging departmental problems "is deserving of vigilant protection by the First Amendment.").. 

1598 NORTH CAROLINA REGISTER March 15, 1999 13:18 



CONTESTED CASE DECISIONS 



This 19" day of January, 1999. 



Beecher R. Gray 
Administrative Law Judge 



13:18 



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